{"dedup_key":"2021 IL App (1st) 192551","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL 127519","case_name":"Chicago Sun-Times v. Cook County Health and Hospitals System","court_level":"Supreme","appellate_district":"1st","year":2021,"county":"Times v. Cook","appellate_docket":"1-19-2551","circuit_docket":"18-CH-08658","published":1,"authoring_justice":"Burke","statute":["FOIA"],"exemptions_cited":["7(1)(c)"],"public_body":"Cook County Health and Hospitals System","requesting_party":"Chicago Sun-Times","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The Supreme Court held that the Cook County Health and Hospitals System was not required under FOIA to create a new record by extracting and compiling data from its existing database to fulfill the plaintiff's request. The Court clarified that FOIA requires the disclosure of existing public records but does not mandate that public bodies perform research or create new documents to satisfy a request.","best_text_source":"Court Opinions - FOIA/Chicago Sun-Times v. Cook County Health and Hospital System, 2022 IL 127519.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:32.175280","site_category":"Search & Production","date_decided":"2022-11-30","site_url":"/cases/2021%20IL%20App%20(1st)%20192551/","text_url":"/case-text/2021%20IL%20App%20(1st)%20192551.txt","full_text":" Digitally signed\n by Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Supreme Court Date: 2023.08.24\n 13:48:20 -05'00'\n\n\n\n Chicago Sun-Times v. Cook County Health & Hospitals System, 2022 IL 127519\n\n\n\n\nCaption in Supreme CHICAGO SUN-TIMES, Appellee v. THE COOK COUNTY\nCourt: HEALTH AND HOSPITALS SYSTEM, Appellant.\n\n\n\nDocket No. 127519\n\n\n\nFiled November 30, 2022\n\n\n\nDecision Under Appeal from the Appellate Court for the First District; heard in that\nReview court on appeal from the Circuit Court of Cook County, the Hon. Eve\n M. Reilly, Judge, presiding.\n\n\n\nJudgment Appellate court judgment affirmed.\n Circuit court judgment reversed.\n Cause remanded.\n\n\nCounsel on Kimberly M. Foxx, State’s Attorney, of Chicago (Cathy McNeil Stein,\nAppeal Jessica M. Scheller, Prathima Yeddanapudi, and Jonathon D. Byrer,\n Assistant State’s Attorneys, of counsel), for appellant.\n\n Matthew Topic, Josh Loevy, Merrick Wayne, and Shelley Geiszler, of\n Loevy & Loevy, of Chicago, for appellee.\n\f Justices JUSTICE MICHAEL J. BURKE delivered the judgment of the court,\n with opinion.\n Justices Anne M. Burke, Neville, Overstreet, Carter, and Holder White\n concurred in the judgment and opinion.\n Chief Justice Theis dissented, with opinion.\n\n\n\n OPINION\n\n¶1 Plaintiff, the Chicago Sun-Times, sent defendant, the Cook County Health and Hospitals\n System, a request under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West\n 2018)) for information about gunshot wound patients who arrive at defendant’s emergency\n rooms unaccompanied by law enforcement. Plaintiff was investigating whether defendant was\n meeting a requirement to notify local law enforcement when so-called “walk-in” gunshot\n wound patients are treated. 20 ILCS 2630/3.2 (West 2018). Plaintiff asked for the “time/date”\n of each relevant hospital admission and the corresponding “time/date” of law enforcement\n notification.\n¶2 Defendant asserted two FOIA exemptions and withheld the records, claiming they\n contained (1) personal health information prohibited from disclosure by the Health Insurance\n Portability and Accountability Act (HIPAA) (Pub. L. No. 104-191, 110 Stat. 1936 (1996)\n (codified as amended in scattered sections of Titles 18, 26, 29, and 42 of the United States\n Code); 5 ILCS 140/7(1)(a) (West 2018)) and (2) private information barred from disclosure\n under FOIA (5 ILCS 140/7(1)(b) (West 2018)).\n¶3 Plaintiff initiated a FOIA enforcement action, arguing that the year listed on each record\n was discoverable, even if the time of day, day of month, and month were not. Id. § 11(a). The\n Cook County circuit court ruled for defendant on the parties’ cross-motions for summary\n judgment. The appellate court reversed, holding that HIPAA and FOIA permitted the release\n of the year elements of the records as long as the individual identifying information was\n redacted, or “de-identified” to maintain patient confidentiality. 2021 IL App (1st) 192551.\n¶4 The issue presented is whether the year of each walk-in gunshot wound patient admission\n and the year of the corresponding law enforcement notification of each admission are exempt\n from disclosure under section 7(1)(a), which incorporates privacy laws such as HIPAA, or\n section 7(1)(b), which prohibits the disclosure of private information, including medical\n records. In light of the narrow scope of plaintiff’s request, we hold that the responsive\n information is not exempt from disclosure under the two exemptions addressed in the parties’\n cross-motions for summary judgment. We affirm the appellate court’s judgment, reverse the\n circuit court’s judgment, and remand the cause for further proceedings.\n\n¶5 I. BACKGROUND\n¶6 On September 10, 2018, plaintiff requested the following information at issue:\n “Without providing identifying patient information, we seek the time/date of\n admission of patients seeking treatment for gunshot wounds through [defendant]\n between Jan. 1, 2015 through the present day who were not been [sic] accompanied by\n\n -2-\n\f a law enforcement officer at the time of their admission as well as the corresponding\n time/date that law enforcement officials were notified of the patients’ admission as\n required by state statue [sic] (20 ILCS 2630/3.2).”\n¶7 On October 26, 2018, Deborah Fortier, defendant’s FOIA officer, answered the request in\n relevant part as follows:\n “According to Trauma administration, there is a trauma registry that logs arrival\n information of all trauma patients not just walk in gunshot patients, however that log is\n identifiable private patient health/medical information that is protected from release by\n medical privacy laws and regulations, including but not limited to HIPAA. Further,\n there is no independent written record of patient information that simply tracks\n times/dates of walk in gunshot patients and reporting; so, there is no existing document\n that is responsive to your request. Respectfully, [defendant] is not required under the\n FOIA to create a document that is not kept in the regular course of business in order to\n respond to your request. Further, it would be improper and a violation of state and\n federal medical privacy laws, including but not limited to HIPAA, for [defendant] to\n release the specific arrival times and dates and reporting dates of individual walk in\n gunshot patients, as this could allow for patient identification. This patient information,\n which is individual protected patient health/medical information, is therefore exempt\n from public release under Sections 2(c-5) and 7(1)(a) of the FOIA. This would also\n include where arrival times and dates and date of any reporting would be entered into\n individual patient medical records; medical records are not public records and are\n private records per se under Section 2(c-5) of the FOIA. In fact, it would be a violation\n of medical privacy laws, for [defendant’s] staff to review or even access patient medical\n information to respond to a FOIA request, as responding to a public records request is\n not a lawful purpose to access patient medical information.”\n¶8 On November 21, 2018, plaintiff filed a complaint alleging defendant improperly withheld\n the information. Plaintiff sought, inter alia, an order requiring defendant to produce the\n requested records and enjoining defendant from withholding public records that are not exempt\n under FOIA.\n¶9 The parties filed cross-motions for summary judgment on the issue of whether the\n information concerning the timing of walk-in patient admission and police notification was\n exempt from disclosure under section 7 of FOIA. Defendant attached to its motion the affidavit\n of Fortier, who averred that John H. Stroger Jr. Hospital of Cook County (Stroger Hospital)\n was the only entity that possessed records that were potentially responsive to plaintiff’s\n request.\n¶ 10 Defendant also attached the affidavit of Justin Mis, Stroger Hospital’s trauma coordinator.\n Mis averred that the electronic trauma registry at Stroger Hospital contains entries for each\n patient arriving at the hospital. Each entry includes the patient’s name, date and time of arrival,\n medical record number, and the patient’s chief complaint. Mis conceded that he could generate\n a report listing only the mechanism of injury, such as gunshot wound, and the patient’s time\n of arrival in the emergency department. However, the report would not state whether the patient\n was accompanied by a law enforcement officer or when law enforcement was notified, if at\n all. To determine which patients were unaccompanied, Mis would need to cross-reference the\n report with the “patient access log.” The log shows the time and date a law enforcement officer\n\n\n -3-\n\f requested access to a patient, but it would not indicate whether the request was prompted by\n hospital notification. Ultimately, Mis would need to access the medical record of each gunshot\n wound patient to determine whether he or she arrived at Stroger Hospital with law enforcement\n or if law enforcement was notified of the admission.\n¶ 11 Fortier averred that the trauma registry and the patient access log contained protected health\n information as defined by HIPAA. Fortier claimed defendant could not remove enough\n identifying information from the trauma registry and the patient access log to fulfill the FOIA\n request and still comply with HIPAA. Further, Fortier averred that the responsive records\n constituted medical records that are protected from disclosure under Illinois law.\n¶ 12 Plaintiff argued in its summary judgment motion that FOIA permitted disclosure of the\n requested information in a de-identified report. Specifically, plaintiff argued HIPAA permits\n the disclosure of the year of treatment and year of law enforcement notification. Plaintiff\n conceded that HIPAA bars disclosure of other elements of a date field, such as time of day,\n day of month, or month.\n¶ 13 On November 15, 2019, the circuit court entered summary judgment for defendant. The\n court stated that, because the year identifier was part of a medical record, it was exempt from\n disclosure under section 7(1)(b) of FOIA. The court explained that, without case law expressly\n permitting the redaction of medical records for FOIA purposes, the responsive information was\n not improperly withheld.\n¶ 14 The appellate court reversed the summary judgment and remanded for further proceedings.\n 2021 IL App (1st) 192551, ¶ 29. The court determined that plaintiff had not forfeited review\n by revising its request at the summary judgment stage. Id. ¶ 15. Plaintiff initially requested\n “time/date” information, but plaintiff’s summary judgment motion conceded that just the year\n element was releasable. The court observed that “narrowing of the request reflects an implicit\n concession by [plaintiff] that it was not entitled to the more specific date and time information.”\n Id.\n¶ 15 The appellate court held section 7(1)(a) of FOIA did not exempt the year of patient\n admission and police notification in gunshot-wound cases because the year element, alone,\n does not convey identifying information. Id. ¶ 19 (citing 45 C.F.R. § 164.514(b)(2)(i)(A)-(C),\n (G), (H) (2018)). The court held that removing individual identifiers would de-identify the\n information in compliance with HIPAA. Id.\n¶ 16 Considering the sheer number of gunshot-wound patients treated at Stroger Hospital during\n the relevant time period, the court also rejected defendant’s claim that it had “ ‘actual\n knowledge that the information could be used alone or in combination with other information\n to identify an individual who is a subject of the information.’ ” Id. ¶ 20 (quoting 45 C.F.R.\n § 164.514(b)(2)(ii) (2018)).\n¶ 17 The appellate court separately held that the year information was not exempt under section\n 7(1)(b) of FOIA, which prohibits the disclosure of “private information,” including “medical\n records.” Id. ¶ 25 (citing 5 ILCS 140/2(c-5) (West 2018)). Noting that FOIA does not define\n “medical records,” the court declined to adopt the definition set forth in the Illinois\n Administrative Code, instead relying on the plain and ordinary meaning of the words. Id.\n (citing 77 Ill. Adm. Code 250.1510(b)(2)(A) (2019)). The dictionary definition of “medical\n record” is “ ‘documents that compose a medical patient’s healthcare history.’ ” Id. (quoting\n Black’s Law Dictionary (11th ed. 2019)). The court concluded that, “[w]hile the year of a\n\n -4-\n\f patient’s hospital admission may be found in a patient’s medical record, it, standing alone, is\n not a medical record under this definition.” (Emphasis in original.) Id.\n¶ 18 Defendant filed a petition for leave to appeal, which we allowed pursuant to Illinois\n Supreme Court Rule 315 (eff. Oct. 1, 2020).\n\n¶ 19 II. ANALYSIS\n¶ 20 On appeal, defendant renews its arguments that (1) HIPAA prohibits covered entities from\n using and disclosing their patients’ private health information to comply with a FOIA request\n and (2) the responsive records, even with the unique identifiers redacted, constitute “medical\n records” that FOIA categorically exempts from disclosure.\n¶ 21 Defendant alternatively argues that complying with the FOIA request would be unduly\n burdensome. Fortier’s response alluded to the impracticality of processing the records, but the\n parties did not raise the issue in their cross-motions for summary judgment, and the issue was\n not addressed by the lower courts.\n¶ 22 Plaintiff contends that the appellate court’s judgment should be affirmed because plaintiff\n seeks only the year element of the date field from the records. 1 For the following reasons, we\n agree with plaintiff that defendant can de-identify the records and comply with the request\n without violating HIPAA’s privacy rule or FOIA’s prohibition against disclosing medical\n records. We do not reach the question of whether the request was unduly burdensome.\n\n¶ 23 A. Summary Judgment\n¶ 24 This appeal arises from the parties’ cross-motions for summary judgment.\n “[S]ummary judgment should be granted only where the pleadings, depositions,\n admissions and affidavits on file, when viewed in the light most favorable to the\n nonmoving party, show that there is no genuine issue as to any material fact and that\n the moving party is clearly entitled to judgment as a matter of law.” Pielet v. Pielet,\n 2012 IL 112064, ¶ 29.\n See 735 ILCS 5/2-1005 (West 2018). “When parties file cross-motions for summary judgment,\n they mutually agree that there are no genuine issues of material fact and that only a question\n of law is involved.” Jones v. Municipal Employees’ Annuity & Benefit Fund of Chicago, 2016\n IL 119618, ¶ 26. We review summary judgment de novo. Pielet, 2012 IL 112064, ¶ 30.\n De novo review also applies to our interpretation of FOIA and HIPAA. In re Appointment of\n Special Prosecutor, 2019 IL 122949, ¶ 22 (issues of statutory construction present questions\n of law that we review de novo).\n\n¶ 25 B. Statutory Interpretation\n¶ 26 The objective of statutory interpretation is to ascertain and give effect to the legislature’s\n intent, and the most reliable indicator of that intent is the language of the statute, given its plain\n and ordinary meaning. Id. ¶ 23. The General Assembly has declared FOIA’s underlying public\n\n 1\n Although defendant criticizes plaintiff’s FOIA request as “reformulated after the fact and during\n the pendency of litigation,” the parties have adopted plaintiff’s interpretation of “time/date” to mean\n “year.” We consider the issues, as presented by the parties, in terms of whether the year element is\n releasable.\n\n -5-\n\f policy to be that “all persons are entitled to full and complete information regarding the affairs\n of government and the official acts and policies of those who represent them as public officials\n and public employees consistent with the terms of this Act.” 5 ILCS 140/1 (West 2018). “It is\n a fundamental obligation of government to operate openly and provide public records as\n expediently and efficiently as possible in compliance with this Act.” Id.\n¶ 27 This clear expression of legislative intent means that public records are presumed to be\n open and accessible. Special Prosecutor, 2019 IL 122949, ¶ 25. FOIA should be construed\n liberally to achieve the goal of providing the public with easy access to government\n information. Id.\n¶ 28 FOIA prescribes rules to ensure governmental compliance, including requiring a prompt\n response to a request for inspection or a copy of documents: “[e]ach public body shall,\n promptly, either comply with or deny a request for public records within 5 business days after\n its receipt of the request, unless the time for response is properly extended.” 5 ILCS 140/3(d)\n (West 2018). When a person has been denied access to a public record, he “may file suit for\n injunctive or declaratory relief” and may seek attorney fees and civil penalties from the public\n body. Id. § 11(a), (i), (j). The circuit court is vested with “jurisdiction to enjoin the public body\n from withholding public records and to order the production of any public records improperly\n withheld from the person seeking access.” Id. § 11(d); Special Prosecutor, 2019 IL 122949,\n ¶ 57.\n¶ 29 However, a public body may withhold information that is exempt from disclosure. 5 ILCS\n 140/7 (West 2018). A public body claiming an exemption bears the burden of proving by clear\n and convincing evidence that the requested information is exempt. Id. § 1.2. When a request is\n made to inspect or copy a public record that contains information that is exempt from\n disclosure under section 7 but also contains information that is not exempt, the public body\n may elect to redact the information that is exempt. Id. § 7(1). In that case, the public body shall\n make the remaining information available for inspection and copying. Id.\n¶ 30 Defendant asserted two exemptions, claiming (1) HIPAA prohibits the use and disclosure\n of the information and (2) the information is “private information” under FOIA. Id. § 7(1)(a),\n (b). Plaintiff responds that defendant can comply with HIPAA and FOIA by redacting the\n exempt information from the medical records while making the requested information\n available.\n\n¶ 31 1. Section 7(1)(a)\n¶ 32 The first exemption cited by defendant exposes tension between two strong public policies:\n FOIA’s promotion of the open disclosure of government records and HIPAA’s protection of\n private health information. Defendant claims that “answering a public records request *** is\n not a permitted use under HIPAA.” But when statutes potentially conflict, they must be\n construed in harmony with one another if reasonably possible. Knolls Condominium Ass’n v.\n Harms, 202 Ill. 2d 450, 458-59 (2002). The two statutory schemes can be reconciled in this\n case to facilitate the disclosure of government records while protecting patient privacy.\n¶ 33 FOIA exempts “[i]nformation specifically prohibited from disclosure by federal or State\n law or rules and regulations implementing federal or State law.” 5 ILCS 140/7(1)(a) (West\n 2018). Defendant asserts that HIPAA, a federal law, specifically prohibits the disclosure of the\n\n\n\n -6-\n\f year of admission of each walk-in gunshot wound patient and the year of each corresponding\n law enforcement notification.\n¶ 34 HIPAA’s privacy rule prohibits the “use or disclosure” of an individual’s personal health\n information by a covered entity, like defendant, unless the individual has consented in writing\n or unless the use or disclosure is otherwise specifically permitted or required by the privacy\n rule. 45 C.F.R. §§ 164.502, 164.506, 164.508, 164.510, 164.512 (2018). HIPAA defines\n “protected health information,” as all “individually identifiable health information” kept by a\n covered entity that is transmitted or maintained in any form or medium, including electronic\n media. Id. § 160.103. “Individually identifiable health information” includes demographic\n information collected from an individual that\n “(1) Is created or received by a health care provider, health plan, employer, or health\n care clearinghouse; and\n (2) Relates to the past, present, or future physical or mental health or condition of\n an individual; the provision of health care to an individual; or the past, present, or future\n payment for the provision of health care to an individual; and\n (i) That identifies the individual; or\n (ii) With respect to which there is a reasonable basis to believe the information\n can be used to identify the individual.” Id.\n¶ 35 The parties correctly agree the responsive records contain protected health information, but\n defendant argues, “[r]eviewing medical records in response to a FOIA request is not a\n permitted use of protected health information.” To determine whether a public body can\n comply with the FOIA request without violating HIPAA, we must consider how the public\n body would use the protected health information to process the request. Here, Fortier,\n defendant’s FOIA officer, and Mis, Stroger Hospital’s trauma administrator, described\n defendant’s record keeping. The records containing the requested information could be sorted\n in two databases: the trauma registry, which records each patient’s arrival at Stroger Hospital,\n and the patient access log, which shows the time and date a law enforcement officer requested\n access to a patient. From these databases, defendant could generate a report showing the arrival\n times of gunshot wound patients and the corresponding times that law enforcement asked to\n see the patient. But defendant would need to examine the medical record of each patient on the\n list to ascertain whether law enforcement’s request for access to a patient was prompted by the\n hospital’s notification.\n¶ 36 The data processing described by Fortier and Mis qualifies as “use” of individually\n identifiable health information under HIPAA. Id. (“Use means, with respect to individually\n identifiable health information, the sharing, employment, application, utilization, examination,\n or analysis of such information within an entity that maintains such information.”). However,\n HIPAA expressly states that a covered entity may use protected health information to create\n de-identified information for use by a person other than the covered entity: “[a] covered entity\n may use protected health information to create information that is not individually identifiable\n health information or disclose protected health information only to a business associate for\n such purpose, whether or not the de-identified information is to be used by the covered entity.”\n Id. § 164.502(d)(1).\n¶ 37 Health information, once de-identified, no longer meets the standard of individually\n identifiable health information subject to HIPAA’s protection. Id. § 164.514(a) (“Health\n\n -7-\n\f information that does not identify an individual and with respect to which there is no reasonable\n basis to believe that the information can be used to identify an individual is not individually\n identifiable health information.”). And HIPAA contains an implementation specification to\n facilitate de-identification. A covered entity may determine that health information is not\n individually identifiable health information if (1) the covered entity does not have actual\n knowledge that the information could be used alone or in combination with other information\n to identify an individual who is a subject of the information (id. § 164.514(b)(2)(ii)) and (2) the\n following identifiers are removed:\n “(A) Names;\n (B) All geographic subdivisions smaller than a State, including street address, city,\n county, precinct, zip code, and their equivalent geocodes, except for the initial three\n digits of a zip code if, according to the current publicly available data from the Bureau\n of the Census:\n (1) The geographic unit formed by combining all zip codes with the same three\n initial digits contains more than 20,000 people; and\n (2) The initial three digits of a zip code for all such geographic units containing\n 20,000 or fewer people is changed to 000.\n (C) All elements of dates (except year) for dates directly related to an individual,\n including birth date, admission date, discharge date, date of death; and all ages over 89\n and all elements of dates (including year) indicative of such age, except that such ages\n and elements may be aggregated into a single category of age 90 or older;\n (D) Telephone numbers;\n (E) Fax numbers;\n (F) Electronic mail addresses;\n (G) Social security numbers;\n (H) Medical record numbers;\n (I) Health plan beneficiary numbers;\n (J) Account numbers;\n (K) Certificate/license numbers;\n (L) Vehicle identifiers and serial numbers, including license plate numbers;\n (M) Device identifiers and serial numbers;\n (N) Web Universal Resource Locators (URLs);\n (O) Internet Protocol (IP) address numbers;\n (P) Biometric identifiers, including finger and voice prints;\n (Q) Full face photographic images and any comparable images; and\n (R) Any other unique identifying number, characteristic, or code, except as\n permitted by paragraph (c) of this section[.]” (Emphasis added.) Id. § 164.514(b)(2)(i).\n¶ 38 Section 164.514(b)(2)(i) specifically excludes the year element from the date identifiers\n that must be removed for de-identification. Accordingly, plaintiff confined its request to the\n year elements directly related to the walk-in gunshot wound patients involved. Plaintiff\n specifically asked defendant to withhold “identifying patient information” and did not seek\n any other identifiers that could be used to identify an individual.\n\n -8-\n\f¶ 39 Moreover, there was no evidence that defendant has “actual knowledge that the information\n could be used alone or in combination with other information to identify an individual who is\n a subject of the information.” Id. § 164.514(b)(2)(ii). Defendant estimated that Stroger\n Hospital treated as many as 2000 gunshot wound victims during the relevant time period,\n which diminishes the risk of identifying any one individual. The appellate court astutely\n observed, “[i]t strains credulity to imagine that any specific patient could be identified merely\n by the year they were admitted and the year law enforcement was notified of their admission.”\n 2021 IL App (1st) 192551, ¶ 20.\n¶ 40 The de-identification process is a permitted use of protected health information under\n HIPAA (45 C.F.R. § 164.502(d)(1)) (2018)), and the removal of all the enumerated individual\n identifiers except the year element would meet HIPAA’s de-identification requirements for\n disclosure (id. § 164.514(b)(2)(i)). Under the circumstances, we hold that defendant’s use of\n the patients’ protected health information to process plaintiff’s FOIA request would not run\n afoul of HIPAA’s privacy rule because the year element related to each patient admission and\n police notification is not individually identifiable health information. That said, we expressly\n limit our holding to the facts presented, as the exemption could apply to a future request\n involving fewer patients where the year element of a record could be used for identification.\n See id. § 164.514(b)(2)(ii).\n¶ 41 Defendant contends King v. Cook County Health & Hospitals System, 2020 IL App (1st)\n 190925, compels a different result. In King, the FOIA requester asked for the zip codes used\n to create a map of the locations of individuals who had previously received mental health\n services while detained in the Cook County jail. Id. ¶ 1. The public body, which coincidentally\n happens to be defendant in this case, asserted section 7(1)(a) as an exemption on the ground\n that disclosure would violate the Mental Health and Developmental Disabilities\n Confidentiality Act (Confidentiality Act) (740 ILCS 110/1 et seq. (West 2016)), which\n incorporates HIPAA regulations by reference. King, 2020 IL App (1st) 190925, ¶ 28 (citing 45\n C.F.R. § 164.514 (2016) and 740 ILCS 110/2 (West 2016)).\n¶ 42 To determine whether the zip codes were confidential information under the\n Confidentiality Act, the Appellate Court, First District, examined HIPAA and its pertinent\n regulations. Id. ¶ 27. The court held that the individuals’ zip code information was protected\n health information but could be released after de-identification. Id. ¶ 28.\n¶ 43 Defendant contends that HIPAA permitted the release of the redacted zip codes in King\n “[b]ecause the information had been collected for an authorized use, and the use was for a\n legitimate transaction of public business.” Defendant contrasts King with this case, where\n defendant claims the necessary redactions would be a misuse of protected health information\n under HIPAA. Defendant is mistaken.\n¶ 44 In King, the redacted zip codes were releasable because they had been de-identified\n according to the implementation specifications set forth in section 164.514(b)(2)(i)(B) of\n HIPAA (45 C.F.R. § 164.514(b)(2)(i)(B) (2018)). King, 2020 IL App (1st) 190925, ¶ 31\n (“HIPAA regulations provide that a covered entity may determine that private health\n information is not individually identifiable only if the last three digits of a zip code are\n removed, where the geographic unit formed by combining all the zip codes with the same three\n initial digits contains more than 20,000 people”). Like the redacted zip codes in King, the year\n elements in this case are not individually identifiable health information if properly de-\n\n\n -9-\n\f identified, regardless of how the public body previously used the information. 45 C.F.R.\n § 164.502(d)(1) (2018) (“A covered entity may use protected health information to create\n information that is not individually identifiable health information or disclose protected health\n information only to a business associate for such purpose, whether or not the de-identified\n information is to be used by the covered entity.”).\n\n¶ 45 2. Section 7(1)(b)\n¶ 46 Defendant also asserts the responsive records are exempt because they contain “[p]rivate\n information,” where disclosure is not required by another provision of FOIA, a state or federal\n law, or a court order. 5 ILCS 140/7(1)(b) (West 2018).\n “ ‘Private information’ means unique identifiers, including a person’s social security\n number, driver’s license number, employee identification number, biometric\n identifiers, personal financial information, passwords or other access codes, medical\n records, home or personal telephone numbers, and personal email addresses. Private\n information also includes home address and personal license plates, except as otherwise\n provided by law or when compiled without possibility of attribution to any person.”\n (Emphasis added.) Id. § 2(c-5).\n¶ 47 Defendant argues, without citation of authority, “the entirety of a ‘medical record’—not\n merely certain discrete information found in such a record—is exempt from disclosure.” We\n disagree. The year element is not “private information” under FOIA and so is not exempt under\n section 7(1)(b).\n¶ 48 Defendant cites provisions in the Medical Rights Act (410 ILCS 50/3(d) (West 2018)), the\n Managed Care Reform and Patient Rights Act (215 ILCS 134/5(a)(4) (West 2018)), and the\n Hospital Licensing Act (210 ILCS 85/6.17(d) (West 2018)) for the proposition that\n “individuals have a right to an expectation of privacy related to their medical information.”\n These statutory schemes define “medical records,” but FOIA, which is the operative statute in\n this case, does not. So, we adopt the approach taken by the appellate court, which is to resort\n to the plain and ordinary meaning of the term. Special Prosecutor, 2019 IL 122949, ¶ 23.\n¶ 49 Defendant concedes that the plain and ordinary meaning of “medical records” is “[t]he\n documents that compose a medical patient’s healthcare history.” Black’s Law Dictionary 1177\n (11th ed. 2019). Although the year element requested by plaintiff is found in medical records,\n the year element by itself, stripped of context, is not a document of a patient’s healthcare\n history.\n¶ 50 Defendant argues that, even if maintaining patient anonymity permits disclosure of the year\n element, the process of matching the year of patient admission to the year of police notification\n would require “some form of personally identifiable information such as the medical record\n number.” Processing the FOIA request might involve accessing medical records, including\n their reference numbers, to match the year of patient admission to the year of law enforcement\n notification. But section 7(1)(b) of FOIA prohibits the disclosure, not the use, of medical\n records. Theoretically, defendant can use the medical record numbers to match the year\n elements of patient admission and law enforcement notification and then renumber the\n matched records before turning them over to plaintiff.\n¶ 51 Defendant concludes that the exemption for medical records would be rendered\n superfluous if a public body could simply redact personally identifying information and release\n\n - 10 -\n\f the rest of the record. However, the exemption for private information under section 7(1)(b)\n plainly covers “unique identifiers,” which confirms that the removal of uniquely identifying\n information from a patient’s healthcare history renders the remainder of the document\n releasable. Adopting defendant’s broad interpretation that “medical records” are exempt in\n their entirety would potentially shield from disclosure all information concerning patient care\n undertaken by a public body.\n\n¶ 52 3. Unduly Burdensome\n¶ 53 Defendant alternatively argues that, even if the year element of the responsive records is\n not exempt from disclosure, the information was not withheld improperly. Defendant asserts\n the steps for processing the request, including the de-identification of the records, would be\n unduly burdensome under section 3(g) of FOIA. 5 ILCS 140/3(g) (West 2018). Defendant adds\n that plaintiff’s “reformulation” of the request at the summary judgment stage would make\n compliance even more burdensome.\n¶ 54 Section 3(g) provides,\n “[r]equests calling for all records falling within a category shall be complied with\n unless compliance with the request would be unduly burdensome for the complying\n public body and there is no way to narrow the request and the burden on the public\n body outweighs the public interest in the information.” Id.\n Plaintiff’s request for information about walk-in gunshot wound patients concerns a distinct\n category of records, so section 3(g) potentially applies.\n¶ 55 Plaintiff responds that defendant has failed to preserve the issue for review. See, e.g.,\n Lazenby v. Mark’s Construction, Inc., 236 Ill. 2d 83, 92 (2010) (the failure to raise an issue in\n the circuit court or appellate court results in forfeiture). Plaintiff claims defendant was required\n to invoke section 3(g) as an affirmative defense and in its motion for summary judgment, or\n risk forfeiture. Plaintiff does not develop its forfeiture argument besides asserting “this court\n need not address the merits of [defendant’s] burden claim because it failed to properly raise\n the issue below.” We decline to advocate for plaintiff on the potentially complex issue of what\n measures a public body must take to preserve the unduly burdensome defense under FOIA.\n People ex rel. Illinois Department of Labor v. E.R.H. Enterprises, Inc., 2013 IL 115106, ¶ 56\n (“a reviewing court is not simply a depository into which a party may dump the burden of\n argument and research”).\n¶ 56 Setting forfeiture aside, this action’s procedural posture illustrates why weighing the\n evidence on the burdens associated with processing the request would be premature at this\n point. Cross-motions for summary judgment, like those filed in this case, ordinarily signify the\n parties’ mutual agreement that there are no genuine issues of material fact and that only a\n question of law remains. Jones, 2016 IL 119618, ¶ 26. However, defendant did not invoke\n section 3(g) in its motion for summary judgment, which was perhaps a tacit acknowledgment\n that a question of fact exists about whether processing the request would be unduly\n burdensome. The record contains some evidence, but the lower courts did not reach the issue\n because the parties have focused on the two exemptions concerning HIPAA and medical\n records.\n¶ 57 Because the litigation did not progress beyond the summary judgment stage, we confine\n our review to the summary judgment entered for defendant and decline to delve into the factual\n\n - 11 -\n\f question of the burdens associated with processing the request. That said, the circuit court is\n free to address the procedural and substantive issues surrounding the unduly burdensome\n nature of the request if defendant asserts section 3(g) on remand. We emphasize that we express\n no opinion on the matter.\n\n¶ 58 III. CONCLUSION\n¶ 59 The parties disputed in their cross-motions for summary judgment whether two exemptions\n authorized defendant to withhold the year of admission for walk-in gunshot wound patients\n and the corresponding year of police notification from January 1, 2015, through September 10,\n 2018. Defendant claims (1) the information is prohibited from disclosure under HIPAA and\n (2) the information is “private information” under FOIA. 5 ILCS 140/7(1)(a), (b) (West 2018).\n We hold that the HIPAA regulations and FOIA exemptions cited by defendant do not bar the\n release of the year elements of the responsive records as long as the remaining individual\n identifying information is removed to maintain patient confidentiality. We affirm the appellate\n court judgment, reverse the circuit court judgment, and remand the cause to the circuit court\n for further proceedings consistent with this opinion.\n\n¶ 60 Appellate court judgment affirmed.\n¶ 61 Circuit court judgment reversed.\n¶ 62 Cause remanded.\n\n¶ 63 CHIEF JUSTICE THEIS, dissenting:\n¶ 64 Contrary to how the majority frames it, the issue in this case is not whether the year that\n each walk-in gunshot wound patient was admitted to the hospital and the year that law\n enforcement was notified of the admission are exempt from disclosure under the Freedom of\n Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2018)). Rather, the issue is whether FOIA\n requires a public body to review its records to piece together information to create a new\n document in response to a FOIA request. FOIA imposes no such requirements on the public\n body. Therefore, I respectfully dissent.\n¶ 65 The majority correctly observes that FOIA’s underlying public policy is that “all persons\n are entitled to full and complete information regarding the affairs of government and the\n official acts and policies of those who represent them as public officials and public employees\n consistent with the terms of this Act.” 5 ILCS 140/1 (West 2018). At the same time, FOIA is\n not intended to “disrupt the duly-undertaken work of any public body independent of the\n fulfillment of any of the fore-mentioned rights of the people to access to information.” Id.\n Further, FOIA\n “is not intended to create an obligation on the part of any public body to maintain or\n prepare any public record which was not maintained or prepared by such public body\n at the time when this Act becomes effective, except as otherwise required by applicable\n local, State or federal law.” Id.\n¶ 66 As an initial matter, I question whether the request at issue sought public records that were\n subject to production under FOIA. As courts have ruled, a “request to inspect or copy must\n reasonably identify a public record and not general data, information, or statistics.” Chicago\n Tribune Co. v. Department of Financial & Professional Regulation, 2014 IL App (4th) 130427,\n\n - 12 -\n\f ¶ 33; see also Kenyon v. Garrels, 184 Ill. App. 3d 28, 32 (1989) (observing that FOIA “does\n not compel the agency to provide answers to questions posed by the inquirer”). Here, as\n modified on appeal, plaintiff’s FOIA request sought the year of\n “admission of patients seeking treatment for gunshot wounds through [defendant]\n between Jan. 1, 2015, through the present day who were not *** accompanied by a law\n enforcement officer at the time of their admission as well as the corresponding [year]\n that law enforcement officials were notified of the patients’ admission as required by\n state statue [sic].”\n This appears to be a request for general information, rather than a request for public records\n under FOIA. 2\n¶ 67 Setting that question aside, the majority notes that the Cook County Health and Hospitals\n System is required to notify local law enforcement when a person who is not accompanied by\n a law enforcement officer arrives for treatment for a gunshot wound. 20 ILCS 2630/3.2 (West\n 2018). The hospital is not, however, required to keep a written log of when it notifies law\n enforcement. See id. In response to plaintiff’s FOIA request and again in its summary judgment\n filings, the hospital explained that there is no written record that tracks the year a gunshot\n wound patient arrived at the hospital unaccompanied by law enforcement and the year that law\n enforcement was notified. In other words, there is no public record that contains the\n information that plaintiff seeks.\n¶ 68 Neither plaintiff nor the majority appears to dispute that the hospital does not possess the\n information that plaintiff has requested. See In re Wade, 969 F.2d 241, 246 (7th Cir. 1992)\n (“Without evidence of bad faith, the veracity of the government’s submissions regarding\n reasons for withholding the documents should not be questioned.”). Nonetheless, the majority\n would require the hospital to comb through the medical records of each gunshot wound patient\n to see whether the hospital’s staff included a notation about whether the patient arrived with\n law enforcement or if law enforcement was notified of the admission. According to the\n majority, the hospital can then “use the medical record numbers to match the year elements of\n patient admission and law enforcement notification and then renumber the matched records\n before turning them over to plaintiff.” Supra ¶ 50. This presumably would require the hospital\n to create a chart that includes a reference number for the patient and the years of patient\n admission and law enforcement notification.\n¶ 69 The majority would impose these requirements even though FOIA “is not designed to\n compel the compilation of data the governmental body does not ordinarily keep.” Kenyon, 184\n Ill. App. 3d at 32. FOIA also does not require a public body to generate new records in response\n to FOIA requests. Martinez v. Cook County State’s Attorney’s Office, 2018 IL App (1st)\n 163153, ¶ 30; see also Hites v. Waubonsee Community College, 2016 IL App (2d) 150836,\n ¶ 74 (distinguishing between performing a search for data on a database that contains public\n records, which is permissible under FOIA, and creating a new record or performing research,\n which is not). And to the extent that the majority would require the hospital to produce redacted\n 2\n By contrast, plaintiff’s other request (which is not at issue in this appeal) asked the hospital for\n “[w]ritten policy and/or related policy documents, and/or internal memos or communications setting\n policy or providing guidelines, instructions and/or directives to staff in the reporting of patients who\n have suffered gunshot wounds to law enforcement agencies as required by state statute.” The hospital\n provided plaintiff with those policies.\n\n - 13 -\n\f medical records (see supra ¶ 51), it is not clear to me that a gunshot wound patient’s medical\n records pertain to the transaction of public business. See 5 ILCS 140/2(c) (West 2018)\n (defining “public records,” in part, as all “documentary materials pertaining to the transaction\n of public business, *** having been prepared by or for, or having been or being used by,\n received by, in the possession of, or under the control of any public body”).\n¶ 70 FOIA does not require a public body to compile information that it does not otherwise\n keep, nor does it require a public body to create a new record in response to a FOIA request.\n Accordingly, I would affirm the trial court’s grant of summary judgment in the hospital’s favor.\n For these reasons, I respectfully dissent.\n\n\n\n\n - 14 -\n\f"} {"dedup_key":"2021 IL App (1st) 200088-U","dedup_key_type":"neutral_citation","neutral_citation":"2021 IL App (1st) 200088-U","case_name":"Vernon Tolbert v. Chicago Police Department","court_level":"Appellate","appellate_district":"1st","year":2021,"county":"Cook","appellate_docket":"1-20-0088","circuit_docket":"18 CH 13208","published":0,"authoring_justice":"Lampkin","statute":["FOIA"],"exemptions_cited":[],"public_body":"Chicago Police Department","requesting_party":"Vernon Tolbert","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The court held that the doctrine of res judicata bars the plaintiff from raising a FOIA claim that relies on materials previously litigated between the same parties concerning the same underlying criminal case. The appellate court affirmed the trial court's dismissal of the complaint.","best_text_source":"Court Opinions - FOIA/Tolbert v. Chicago Police Department, 2021 IL App (1st) 200088-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:32.431385","site_category":"Police & Investigative Records","date_decided":"2021-09-16","site_url":"/cases/2021%20IL%20App%20(1st)%20200088-U/","text_url":"/case-text/2021%20IL%20App%20(1st)%20200088-U.txt","full_text":" 2021 IL App (1st) 200088-U\n No. 1-20-0088\n Order filed September 16, 2021\n Fourth Division\n\n\n NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the\n limited circumstances allowed under Rule 23(e)(1).\n ______________________________________________________________________________\n IN THE\n APPELLATE COURT OF ILLINOIS\n FIRST DISTRICT\n ______________________________________________________________________________\n\n VERNON TOLBERT, ) Appeal from the\n ) Circuit Court of\n Plaintiff-Appellant, ) Cook County.\n )\n v. ) No. 18 CH 13208\n )\n CHICAGO POLICE DEPARTMENT, ) Honorable\n ) Celia C. Gamrath,\n Defendant-Appellee. ) Judge, presiding.\n\n\n\n JUSTICE LAMPKIN delivered the judgment of the court.\n Presiding Justice Reyes and Justice Gordon concurred in the judgment.\n\n ORDER\n\n¶1 Held: The doctrine of res judicata bars plaintiff from raising a claim that relies on\n materials that were the subject of a previously litigated FOIA request between the\n same parties concerning the same underlying criminal case, and in which the circuit\n court entered a final judgment.\n\n\n¶2 Plaintiff Vernon Tolbert (Tolbert) was convicted of first degree murder in Cook County\n\ncircuit court case No. 01-CR-17131 and is currently serving a sentence of 65 years. We affirmed\n\nhis conviction on direct appeal. People v. Tolbert, 354 Ill. App. 3d 94 (2004). Plaintiff’s multiple\n\fNo. 1-20-0088\n\n\ncollateral attacks on his conviction have been found to be non-meritorious and those findings have\n\nbeen affirmed by this court. People v. Tolbert, Nos. 1-04-2451 & 1-04-2531 (cons.) (2006)\n\n(unpublished order under Illinois Supreme Court Rule 23); People v. Tolbert, No. 1-05-2914\n\n(2008) (unpublished order under Supreme Court Rule 23); People v. Tolbert, No. 1-06-2853\n\n(2007) (unpublished order under Supreme Court Rule 23); People v. Tolbert, No. 1-09-2332\n\n(2011) (unpublished order under Supreme Court Rule 23); People v. Tolbert, No. 1-12-0373\n\n(2013) (unpublished order under Supreme Court Rule 23). Based on various jurisdictional defects,\n\nplaintiff has also unsuccessfully appealed multiple adverse postconviction rulings in People v.\n\nTolbert, 2021 IL App (1st) 181654, ¶ 27; People v. Tolbert, 2021 IL App (1st) 181923-U; People\n\nv. Tolbert, 2021 IL App (1st) 182390-U, ¶ 13.\n\n¶3 In 2013, plaintiffs Vernon and Minnie Tolbert filed multiple lawsuits based on Freedom of\n\nInformation Act (FOIA) requests directed to the Chicago Police Department (CPD) and the City\n\nof Chicago (5 ILCS 140/1 et seq. (West 2012)). Of particular significance to the instant case is\n\nTolbert v. Chicago Police Department, 13-CH-03703 (Cir. Ct. Cook County) (the 2013 case),\n\nwhich we discuss in detail.\n\n¶4 In the 2013 case, on May 2, 2013, the plaintiffs filed an amended complaint which sought\n\ncompliance with six FOIA requests filed by them between April 2, 2012, and January 8, 2013.\n\nAs is relevant to this appeal, the plaintiffs sought documents generated in Tolbert’s criminal case\n\nunder “R.D. # F526973,” including: crime scene photographs, arrest report, general offense\n\nreports, general progress reports, case supplementary reports, field notes, notes and names of\n\nwitnesses and officers involved in an incident that occurred on August 27, 2000, at 939 North\n\nPulaski Road, as well as preliminary investigation reports by Sergeant Keane, crime scene\n\n\n\n -2-\n\fNo. 1-20-0088\n\n\nprocessing reports, and the citation for violations of the Chicago Municipal Code issued against\n\nthe owner of the nightclub where the murder occurred.\n\n¶5 On October 30, 2013, the defendants filed a combined motion under section 2-619.1 of the\n\nCode of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2012)), in which they moved to\n\ndismiss the plaintiffs’ complaint. After conducting an in camera inspection of the redacted\n\nmaterials, on January 22, 2015, Judge Celia Gamrath granted the motion in part and denied it in\n\npart, finding:\n\n “Defendants have met their burden in redacting as private, personal, or\n\n identifying, the information about individuals’ employment and reason for being at\n\n the location of the murder, as well as the names and relationships of the individuals\n\n who were with the witnesses on the night of the murder.”\n\n¶6 The trial court also ruled, however, that some of the redacted information, including\n\nTolbert’s own information, pronouns used in reports, and locations of witnesses in the vicinity\n\naround the time of the murder were not exempt under FOIA, and ordered the CPD to produce those\n\nrecords to the plaintiffs with fewer redactions.\n\n¶7 On January 30, 2015, the plaintiffs filed an “objection,” challenging that portion of the\n\ncourt’s order which granted the defendants’ motion to dismiss. The court denied the plaintiffs’\n\nobjection on April 27, 2015.\n\n¶8 In accordance with the court’s January 22, 2015, order, the defendants subsequently\n\nprovided the plaintiffs with new, re-redacted copies of the requested documents. In addition to the\n\ndocuments now including information pertaining to Tolbert, pronouns, and witness locations at\n\n\n\n\n -3-\n\fNo. 1-20-0088\n\n\nthe time of the incident, certain gender, race, and age information was unredacted in the\n\ndefendants’ production which was sent to the plaintiffs on June 17, 2015.\n\n¶9 In making their submissions, the defendants noted that prior redactions consisting of\n\n“identifying information of individuals” were kept intact for “suspects, line-up individuals,\n\nbystanders, and names that appeared incidentally in police reports” as well as for “individuals in a\n\nphoto array, victims, witnesses, and individuals providing information to the police and emergency\n\ncontact information *** because this information is highly personal, where release would be an\n\nunwarranted invasion of personal privacy.”\n\n¶ 10 The defendants specified that the redacted information included “home addresses, social\n\nsecurity numbers, dates of birth, employment numbers, employment user identifications, internal\n\nrecord (‘IR’) numbers, SID numbers [state identification number], FBI numbers, state license\n\nnumbers, telephone numbers, and vehicle identification numbers (‘VIN’),” that the defendants\n\nmaintained were subject to the FOIA exemptions contained in section 140/7(1)(b) (5 ILCS\n\n140/7(1)(b) (West 2012)). Also redacted was the following identifying or incidental information\n\nof witnesses: (1) their names, (2) employment information of the witnesses, (3) reason for being\n\nat the location of the murder, and (4) the names and relationships of the individuals who were with\n\nthe witnesses on the night of the murder.\n\n¶ 11 The defendants then moved for summary judgment, alleging that they complied with the\n\nrequirements of FOIA by conducting a thorough search for records, retrieving the requested\n\nrecords that were in their possession, and providing those records subject to proper redactions\n\nbased on exemptions under FOIA. The record contains no indication that the plaintiffs filed a\n\nresponse to the defendants’ motion.\n\n\n\n -4-\n\fNo. 1-20-0088\n\n\n¶ 12 On October 7, 2015, Judge Gamrath granted the defendants’ motion for summary\n\njudgment.\n\n¶ 13 Three years later, on or about September 10, 2018, Tolbert sent another FOIA request to\n\nCPD requesting “a copy of Charles Miller and Leo Clark’s statements to Chicago Police on August\n\n27, 2000, RD # F526973; People v. Tolbert 01 CR 17131, Cook County Criminal Division under\n\nthe FOIA request.” On September 18, 2018, Andrew Marlan, a FOIA Officer for CPD timely\n\nresponded to Tolbert’s request via letter which indicated:\n\n “Your request was reviewed by the undersigned. A search of CPD records\n\n was conducted based upon the parameters provided. It is determined that any\n\n responsive records, to the extent to which they exist, are denied to you in the interest\n\n of personal privacy. Please be advised, under the FOIA, CPD does not release\n\n records naming specific witnesses. The release of these records would clearly be an\n\n unwarranted invasion of privacy unless CPD receives a signed consent to release\n\n form with a copy of identification from the named witnesses. Without proper\n\n written authorization, these individuals have a strong interest in keeping their\n\n identity private which outweighs any public interest in this information; therefore,\n\n this information is exempt and protected from disclosure pursuant to 5 ILCS\n\n 140/7(1)(c) of FOIA. To the extent that any records may exist, it is determined that\n\n your request must be denied pursuant to subsection 5 ILCS 140/7(1)(c) of the\n\n Illinois Freedom of Information Act (FOIA). As the requested documents may\n\n contain personal information, the disclosure of which would constitute a clearly\n\n unwarranted invasion of personal privacy, and the disclosure has not been\n\n\n\n -5-\n\fNo. 1-20-0088\n\n\n consented to in writing by the individual subject of the information. Furthermore,\n\n the disclosure of reports would compel the Department to violate separate yet\n\n applicable exemptions, specifically subsection 5 ILCS 140/7(1)(b) and 5 ILCS\n\n 140/7(1)(d)(iv).”\n\n¶ 14 Then, on September 28, 2018, and again on October 19, 2018, Tolbert filed a petition to\n\nvacate the court’s judgment (section 2-1401 petition) in the 2013 case. Tolbert’s section 2-1401\n\npetition requested that CPD produce the same statements previously requested in his September\n\n10, 2018, FOIA request.\n\n¶ 15 Next, on October 28, 2018, Tolbert filed the complaint that is the subject of the instant\n\nappeal. The complaint alleged that CPD neither acknowledged nor responded to Tolbert’s\n\nSeptember 10, 2018, FOIA request. Tolbert requested that the court order CPD to comply with his\n\nrequest, conduct an in camera inspection or grant any other appropriate relief.\n\n¶ 16 In the meantime, on January 8, 2019, Tolbert was given leave to file his section 2-1401\n\npetition by Judge Pamela McLean Meyerson. On March 28, 2019, Judge McLean Meyerson\n\ndismissed Tolbert’s section 2-1401 petition based on it being untimely filed and because Tolbert\n\nfailed to satisfy the requirements of section 2-1401(c) of the Code of Civil Procedure (735 ILCS\n\n5/2-1401 (West 2018)). Judge McLean Meyerson ruled:\n\n “Mr. Tolbert argues, among other things, that in 2015 Defendants withheld\n\n from him the statements of Charles Miller and Leo Clark. But Mr. Tolbert has not\n\n shown any legal disability, duress, or fraudulent concealment to justify tolling the\n\n 2-year filing period under Section 2-1401. On the contrary, Mr. Tolbert’s petition\n\n acknowledges that he knew about Mr. Miller and Mr. Clark from ‘the reports\n\n\n\n -6-\n\fNo. 1-20-0088\n\n\n defendant did provide to plaintiff’ in 2015, so the identity of these witnesses was\n\n not concealed—fraudulently or otherwise. Nor did he show that he was under any\n\n legal disability or duress, or that the prior judgment was void.”\n\n¶ 17 Finally, the order stated that, “[n]othing in this Order precludes him from filing a new\n\nFreedom of Information Act request seeking additional documents from defendants. No new\n\nrequests may be made in this case, however.”\n\n¶ 18 In the case at bar, on July 9, 2019, CPD filed a motion to dismiss under section 2-619(a)(9).\n\n(735 ILCS 5/2-619(a)(9) (West 2018)). CPD alleged that they did, in fact, respond to Tolbert’s\n\nFOIA request and attached an affidavit from Andrew Marlan in support of their claim.\n\nCPD maintained that Tolbert’s claim was moot where he received a timely-issued response to his\n\nFOIA request. Additionally, CPD maintained that Tolbert’s request complaint was barred by the\n\ndoctrine of res judicata where his FOIA request sought documents previously requested in the\n\n2013 case, in which a final judgment was entered.\n\n¶ 19 On July 25, 2019, Tolbert filed an “objection” to CPD’s motion to dismiss. Tolbert claimed\n\nthat before receiving CPD’s motion to dismiss, he properly filed and served a motion for leave to\n\nfile an amended complaint and coinciding amended complaint with both the circuit court and CPD.\n\nTolbert’s “objection” now alleged that his FOIA request sought initial statements made to CPD by\n\nCharles Miller, Ruby Miller, 1 and Leo Clark. Tolbert alleged that Charles Miller, Ruby Miller, and\n\nLeo Clark were witnesses in his criminal case and that Leo Clark testified against him at trial.\n\n\n\n\n 1\n Defendant correctly notes that Ruby Miller was not named in Tolbert’s September 10, 2018,\nFOIA request nor his October 28, 2018, complaint.\n\n -7-\n\fNo. 1-20-0088\n\n\nIn response to CPD’s motion to dismiss, Tolbert alleged that res judicata did not apply based on\n\nJudge McLean Meyerson’s March 28, 2019, dismissal order. In pertinent part, Tolbert alleged:\n\n “And had plaintiff known at the time Defendant filed its motion to dismiss\n\n in case no. 13 CH 3703, that defendant failed to fully comply with his FOIA request\n\n by not providing him with Charles Miller, Ruby Miller and Leo Clark’s initial\n\n August 27, 2000 statements to CPD this would have created a material fact\n\n defeating Defendant’s request for summary judgment because a genuine issue of\n\n material fact existed then and now, this is why plaintiff had filed a petition to vacate\n\n judgment in that case cause defendant did not fully comply with his FOIA requests\n\n then and now.”\n\n¶ 20 On August 15, 2019, the circuit court entered an order acknowledging receipt of Tolbert’s\n\nobjection and explicitly finding that neither the court nor CPD received Tolbert’s motion to file an\n\namended FOIA complaint. The court gave Tolbert six weeks to further respond to CPD’s motion\n\nto dismiss. No response from Tolbert is contained in the record.\n\n¶ 21 On November 1, 2019, the court granted CPD’s motion to dismiss. First, the court found\n\nthat where Tolbert’s complaint only alleged that CPD failed to acknowledge or respond to his\n\nFOIA request and did not challenge the exemptions relied on by CPD, defendant established that\n\nthe claim asserted was belied by the record and was moot. In making such ruling, the court again\n\nnoted the absence of any record of Tolbert filing or seeking leave to file an amended complaint.\n\n¶ 22 Additionally, the court determined that Tolbert’s claim was barred by the doctrine of\n\nres judicata where it was “undisputed” that he previously sought the identical records from the\n\nsame party (CPD) in the 2013 case that resulted in a final judgment on the merits. The court\n\n\n\n -8-\n\fNo. 1-20-0088\n\n\ndisagreed with Tolbert’s interpretation of Judge McLean Meyerson’s dismissal order as lifting the\n\nbar of res judicata, noting that the order only allowed Tolbert to file a new FOIA request “seeking\n\nadditional documents, not the same documents that were the subject of previous litigation.”\n\n(Emphasis in original.) The court concluded that:\n\n “[t]o hold otherwise would permit disgruntled FOIA requestors to mount countless\n\n collateral attacks on final judgments by seeking continually, and repeatedly,\n\n identical records previously produced, redacted, and/or withheld by a public body\n\n that were the subject of prior FOIA litigation between the same parties in which a\n\n court of competent jurisdiction rendered a final decision on the merits. Such abuse\n\n cannot be countenanced.”\n\n¶ 23 Tolbert filed a timely notice of appeal on November 26, 2019. He then filed a motion for\n\nleave to file late notice of appeal on December 2, 2019, based on his erroneous belief that the clerk\n\nof the circuit court failed to file his initial notice of appeal. This court then granted Tolbert’s motion\n\nfor leave to file late notice of appeal on January 28, 2020, and Tolbert re-filed his original notice\n\nof appeal, but altered its heading to read “Late Notice of Appeal.” We have jurisdiction pursuant\n\nto Illinois Supreme Court Rule 303(a). (Ill. S. Ct. R. 303(a) (eff. July 1, 2017)).\n\n¶ 24 For the following reasons, we affirm. 2\n\n¶ 25 ANALYSIS\n\n¶ 26 On appeal, the gravamen of Tolbert’s complaint is that CPD refused to provide him with\n\nalleged statements made to the police by Charles Miller, Leo Clark, and Ruby Miller and that the\n\n\n\n 2\n In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018),\nthis appeal has been resolved without oral argument upon the entry of a separate written order.\n\n -9-\n\fNo. 1-20-0088\n\n\ncourt erroneously relied on the mootness doctrine and res judicata in dismissing his complaint.\n\nTolbert seeks these documents based on his contention that they would establish that the police\n\nlearned his identity from these witnesses and subsequently coerced witnesses and eyewitnesses to\n\nidentify him as the shooter in order to obtain a conviction.\n\n¶ 27 We reject Tolbert’s contentions based on the doctrine of res judicata. Before turning our\n\nattention to the applicability of that doctrine, however, we address Tolbert’s factual contentions\n\nthat he was denied due process of law where his motion for leave to file an amended complaint\n\nand coinciding amended complaint were not filed by the clerk of the circuit court, and where the\n\ncourt denied him a meaningful opportunity to amend his complaint.\n\n¶ 28 A. Tolbert’s Factual Assertions Are Belied by the Record\n\n¶ 29 Tolbert’s contention that he properly “filed” a motion for leave to amend his complaint in\n\nthe circuit court and properly “served” a copy of his motion on CPD is devoid of factual support.\n\nIn considering Tolbert’s “objection,” we have no reason to second guess the trial court’s explicit\n\nfinding of fact rejecting Tolbert’s assertion. The record does not contain any documents showing\n\nthat Tolbert did anything to effectuate service on CPD or have his motion or amended complaint\n\nfiled with the court. Plaintiff’s suggestion that the “prison records of his outgoing legal mail will\n\nshow and prove he did mail out such motions to the trial court” does not remedy this failure of\n\nproof. We resolve any doubts which may arise from an incomplete record against the appellant,\n\nFoutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984), and indulge every reasonable presumption in\n\nfavor of the judgment appealed from, including that the trial court ruled or acted correctly.\n\nSmolinski v. Vojta, 363 Ill. App. 3d 752, 757-58 (2006). As the court held in People v. Edwards,\n\n74 Ill. 2d 1, 7 (1978):\n\n\n\n - 10 -\n\fNo. 1-20-0088\n\n\n “A reviewing court may not guess at the harm to an appellant *** where a\n\n record is incomplete. This is not its role. Rather the reviewing court evaluates the\n\n record, as it is, for error. Where the record is insufficient or does not demonstrate\n\n the alleged error, the reviewing court must refrain from supposition and decide\n\n accordingly.”\n\n\n¶ 30 Tolbert’s related contention that he was denied a meaningful opportunity to amend his\n\ncomplaint is, likewise, not borne out by the record. In considering the contents of Tolbert’s\n\nJuly 25, 2019 “objection,” Judge Gamrath found that neither the court nor CPD received Tolbert’s\n\nfiling. The court did not refuse to consider such a motion; it merely noted that no such motion was\n\nbefore it. Tolbert neither appended a copy of the alleged amended motion to his “objection,” nor\n\nsought leave to file it at a later time. In other words, the court could not have abused its discretion\n\nin refusing Tolbert an opportunity to amend his complaint where he never requested that the court\n\npermit him to do so. Matanky Realty Group, Inc. v. Katris, 367 Ill. App. 3d 839, 844 (2006) (circuit\n\ncourt did not abuse its discretion in dismissing the plaintiff’s complaint with prejudice “where no\n\nexercise of that discretion was requested because the record demonstrates that plaintiff never\n\nsought leave to amend its complaint.”)\n\n¶ 31 Tolbert claims that the court could have offered him an opportunity to amend his complaint\n\nbut instead “hurried up and ruled on the complaint” and in so doing, relied only on the “objection,”\n\nwhich, unlike the alleged amended complaint, did not specifically challenge every assertion\n\ncontained in CPD’s motion to dismiss. Putting aside the fact that it was not incumbent on the court\n\nto offer Tolbert such an opportunity, the record affirmatively rebuts his claim that the court acted\n\nprecipitously.\n\n\n - 11 -\n\fNo. 1-20-0088\n\n\n¶ 32 On August 15, 2019, the court did not rule on CPD’s motion to dismiss but set a further\n\nbriefing schedule. Tolbert was given six weeks to file a response to CPD’s motion. Tolbert could\n\nhave chosen not to take remedial action by either (1) seeking reconsideration of the trial court’s\n\nfactual finding that Tolbert failed to properly file and serve a motion to amend his complaint by\n\nproviding a copy of it, or (2) seeking leave to file a new motion to amend his complaint. In point\n\nof fact, Tolbert did neither and additionally did not file a response to CPD’s motion to dismiss.\n\nBased on the record in this case, we reject Tolbert’s contention that the trial court prevented him\n\nfrom filing an amended complaint.\n\n¶ 33 Thus, we consider whether the circuit court properly granted CPD’s motion to dismiss\n\nTolbert’s complaint.\n\n¶ 34 B. Whether the Circuit Court Properly Granted CPD’s Motion to Dismiss\n\n¶ 35 1. Requirements of FOIA\n\n¶ 36 Under Illinois’ FOIA, a public body is required to make all of its public records available\n\nto any person for inspection or copying unless the requested information is exempt from disclosure.\n\n5 ILCS 140/3(a) (West 2018). After receiving a written request for public records, the public body\n\nmust either comply with the request by promptly providing the requested records to the requestor\n\nor promptly deny the request in writing. 5 ILCS 140/3(b)-(d) (West 2018). “Public records are\n\npresumed to be open and accessible.” Day v. City of Chicago, 388 Ill. App. 3d 70, 73 (2009).\n\nFOIA defines “public records” as any documentary materials pertaining to the transaction of public\n\nbusiness, regardless of the format of such materials, which are “in the possession of, or under the\n\ncontrol of any public body.” 5 ILCS 140/2(c) (West 2018).\n\n\n\n\n - 12 -\n\fNo. 1-20-0088\n\n\n¶ 37 The public policy underlying the General Assembly’s adoption of the FOIA appears in\n\nSection 1 of the act and provides in relevant part:\n\n “Pursuant to the fundamental philosophy of the American constitutional\n\n form of government, it is declared to be the public policy of the State of Illinois that\n\n all persons are entitled to full and complete information regarding the affairs of\n\n government and the official acts and policies of those who represent them as public\n\n officials and public employees consistent with the terms of this Act. Such access is\n\n necessary to enable the people to fulfill their duties of discussing public issues fully\n\n and freely, making informed political judgments and monitoring government to\n\n ensure that it is being conducted in the public interest.\n\n The General Assembly hereby declares that it is the public policy of the\n\n State of Illinois that access by all persons to public records promotes the\n\n transparency and accountability of public bodies at all levels of government. It is a\n\n fundamental obligation of government to operate openly and provide public records\n\n as expediently and efficiently as possible in compliance with this Act.”\n\n 5 ILCS 140/1 (West 2018).\n\n¶ 38 “[T]he purpose of the FOIA is ‘to open governmental records to the light of public\n\nscrutiny.’ ” Watkins v. McCarthy, 2012 IL App (1st) 100632, ¶ 13 (quoting Bowie v. Evanston\n\nCommunity Consolidated School District No. 65, 128 Ill. 2d 373, 378 (1989)). The FOIA is given\n\na liberal construction in furtherance of the legislative objective of providing easy public access to\n\ngovernmental information. Fraternal Order of Police, Chicago Lodge No. 7 v. City of Chicago,\n\n2016 IL App (1st) 143884, ¶ 33 (quoting Gekas v. Williamson, 393 Ill. App. 3d 573, 580 (2009)).\n\n\n\n - 13 -\n\fNo. 1-20-0088\n\n\nIn order to further its goals, FOIA’s exemption are to be read narrowly. Garlick v. Bloomingdale\n\nTownship, 2018 IL App (2d) 171013, ¶ 27.\n\n¶ 39 2. Requirements of Section 2-619(a)(9)\n\n¶ 40 Next, we note the requirements of section 2-619(a)(9) of the Code. 735 ILCS 5/2-619(a)(9)\n\n(West 2018). Section 2-619(a)(9) permits involuntary dismissal where the claim asserted “is barred\n\nby other affirmative matter avoiding the legal effect of or defeating the claim.” Id. “The purpose\n\nof a Section 2-619 motion is to dispose of issues of law and easily proved issues of fact at the\n\noutset of litigation.” O’Casek v. Children’s Home & Aid Society of Illinois, 229 Ill. 2d 421, 436\n\n(2008). An “affirmative matter” that defeats a claim has been defined as a type of defense that\n\neither negates an alleged cause of action completely or refutes crucial conclusions of law or\n\nconclusions of material fact unsupported by allegations of a specific fact contained in or inferred\n\nfrom the complaint. Bloomingdale State Bank v. Woodland Sales Company, 186 Ill. App. 3d 227,\n\n233 (1989).\n\n¶ 41 In ruling on a section 2-619 motion, the trial court may consider pleadings, affidavits, and\n\ndeposition evidence. Id. at 232. The court treats all well-pled facts as true and also considers\n\nexternal submissions of the parties. Atkinson v. Affronti, 369 Ill. App. 3d 828, 830 (2006). Where\n\na defendant’s affidavit in support of his motion to dismiss is not challenged or contradicted by\n\ncounter-affidavits or other appropriate means, the facts alleged are deemed admitted by the\n\nplaintiff. Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995). The reviewing court must construe all of\n\nthe pleadings and supporting documents in the light most favorable to the nonmoving party.\n\nDay v. City of Chicago, 388 Ill. App. 3d 70, 73 (2009).\n\n\n\n\n - 14 -\n\fNo. 1-20-0088\n\n\n¶ 42 Once a defendant satisfies his burden of proceeding on a section 2-619 motion by\n\nidentifying affirmative matters that bar the claim, the burden then shifts to the plaintiff to establish\n\nthat the matter is “unfounded or requires the resolution of an essential element of material fact\n\nbefore it is proven.” Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997) (quoting\n\nKedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1983)). If the plaintiff\n\nfails to meet his burden by presenting affidavits or other proof the defendant’s motion may be\n\ngranted and the action dismissed. Id. We review the trial court’s order dismissal pursuant to section\n\n2-619(a)(9) de novo. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 353, 361 (2009).\n\n¶ 43 3. Application of the Law to the Facts of This Case\n\n¶ 44 We find that CPD’s motion to dismiss was properly granted where the doctrine of\n\nres judicata applied and prohibited re-litigation of the same claim raised in Tolbert’s 2013 case.\n\n¶ 45 Res judicata is an equitable doctrine that is designed to prevent a multiplicity of lawsuits\n\nbetween the same parties where the facts and issues are the same. Mular v. Ingram, 2016 IL App\n\n(1st) 152750, ¶ 15 (quoting Severinno v. Freedom Woods, Inc., 407 Ill. App. 3d 238, 244 (2010)).\n\nThe defense of res judicata is properly asserted through a section 2-619 motion to dismiss.\n\nAltair Corp. v Grand Premier Trust & Investment, Inc., 318 Ill. App. 3d 57, 61 (2000).\n\nThe doctrine provides that “a final judgment on the merits rendered by a court of competent\n\njurisdiction bars any subsequent actions between the same parties or their privies on the same cause\n\nof action.” Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996). A prior judgment may bar\n\na cause of action and is grounds for involuntary dismissal pursuant to section 2-619.\n\nEighteen Investments Inc. v. Nationscredit Service Corp., 376 Ill. App. 3d 527, 533 (2007).\n\n\n\n\n - 15 -\n\fNo. 1-20-0088\n\n\n¶ 46 “Res judicata bars a subsequent action if (1) a final judgment on the merits was rendered\n\nby a court of competent jurisdiction, (2) there is an identity of parties or their privies, and (3) there\n\nis an identity of cause of action.” Matejczyk v. City of Chicago, 397 Ill. App. 3d 1, 3 (2009).\n\nThe doctrine of res judicata bars not only what was actually decided in the first action but also\n\nwhatever could have been decided. Hudson v. City of Chicago, 228 Ill. 2d 462, 467 (2008).\n\n“The burden of showing that res judicata applies is on the party invoking the doctrine.” Hernandez\n\nv. Pritikin, 2012 IL 113054, ¶ 41. The principle underlying the doctrine is that litigation must\n\nnecessarily have an end and that no person should be unnecessarily harassed with a multiplicity of\n\nsuits. Altair, 318 Ill. App. 3d at 61. Res judicata also promotes the conservation of judicial\n\nresources by barring repetitive litigation. Id. We review the question of whether res judicata bars\n\na claim de novo. Amalgamated Transit Union, Local 241 v. Chicago Transit Authority, 2014 IL\n\nApp (1st) 122526, ¶ 13.\n\n¶ 47 We find that the circuit court correctly applied the doctrine of res judicata to the facts of\n\nthis case. The trial court found:\n\n “[I]t is undisputed that in prior litigation, case No. 13 CH 3703, Plaintiff\n\n sought the identical records he seeks here from the same party (CPD). The court in\n\n case No. 13 CH3703 rendered a final judgment on the merits. As CPD correctly\n\n states, res judicata bars Plaintiff’s claim.”\n\n¶ 48 To be clear, Tolbert’s claim is predicated on CPD’s failure to produce documents pursuant\n\nto his 2013 FOIA requests, as is clearly reflected in his “objection” which averred:\n\n “And had plaintiff known at the time Defendant filed its motion to dismiss\n\n in case no. 13 CH 3703, that defendant failed to fully comply with his FOIA request\n\n\n\n - 16 -\n\fNo. 1-20-0088\n\n\n by not providing him with Charles Miller, Ruby Miller and Leo Clark’s initial\n\n August 27, 2000 statements to CPD this would have created a material fact\n\n defeating Defendant’s request for summary judgment because a genuine issue of\n\n material fact existed then and now, this is why plaintiff had filed a petition to vacate\n\n judgment in that case [be]cause defendant did not fully comply with his FOIA\n\n requests then and now.”\n\n¶ 49 The trial court granted summary judgment in the 2013 case. That judgment was a final,\n\nappealable order and provided a valid basis for the dismissal of this case under section\n\n5/2-619(a)(4).\n\n¶ 50 Furthermore, as did the trial court, we reject Tolbert’s claim that res judicata did not apply\n\nto his FOIA request based on Judge McLean Meyerson’s order dismissing his section 2-1401\n\npetition. While we recognize that res judicata should not be applied when it would be\n\nfundamentally unfair to do so, (Altair, 318 Ill. App. 3d at 62-63), and that one basis for not applying\n\nthe doctrine arises when the court in the first action expressly reserves the plaintiff’s right to\n\nmaintain a subsequent action, (People v. Rein, 172 Ill. 2d 325, 341 (1996)), this exception does\n\nnot apply.\n\n¶ 51 The summary judgment order in the 2013 case conclusively determined the parties’\n\nrespective rights with regard to everything sought in the multiple FOIA requests, including the\n\nalleged statements that were the subject to the 2018 FOIA request. The fact that the 2018 request\n\nnamed the particular individuals does not alter the fact that his request involved a single group of\n\noperative facts that was first made in 2013, fully litigated, and decided adversely to him.\n\nRes judicata is triggered where separate claims arise from a single group of operative facts,\n\n\n\n - 17 -\n\fNo. 1-20-0088\n\n\nregardless of whether they assert different theories of relief and extends to both what was actually\n\ndecided in the first suit and to matters that could have been decided in that suit. Mular v. Ingram,\n\n2016 IL App (1st) 152750, ¶ 21.\n\n¶ 52 Judge McLean Meyerson’s ruling that Tolbert was not precluded from filing a new FOIA\n\nrequest seeking additional documents did not lift the bar of res judicata where it is the facts as they\n\nexist at the time of the judgment that determines whether res judicata applies. Altair, 318 Ill. App.\n\n3d at 62. This means that our review is necessarily directed to Judge Gamrath’s October 7, 2015\n\norder granting summary judgment in the 2013 case. As we have previously found, subsumed\n\nwithin that judgment were the same operative facts that formed the basis of Tolbert’s September\n\n10, 2018, FOIA request.\n\n¶ 53 Finally, we agree with the trial court that Judge McLean Meyerson’s order is not properly\n\nconstrued as lifting the bar of res judicata for the documents specified in his latest FOIA request\n\nand additionally note that Tolbert cannot properly rely on that order where his FOIA request\n\npreceded his section 2-1401 petition as well as Judge McLean Meyerson’s unrelated ruling in that\n\nmatter.\n\n¶ 54 Where Tolbert’s complaint is based on his dissatisfaction with CPD’s responses to his 2013\n\nFOIA request, which was litigated and resulted in a final judgment arising from the same criminal\n\nmatter, it is barred by res judicata.\n\n¶ 55 CONCLUSION\n\n¶ 56 For these reasons, we affirm the trial court’s order granting defendant’s motion to dismiss.\n\n¶ 57 Affirmed.\n\n\n\n\n - 18 -\n\f"} {"dedup_key":"2021 IL App (1st) 200225","dedup_key_type":"neutral_citation","neutral_citation":"2021 IL App (1st) 200225","case_name":"Fisher v. Office of the Illinois Attorney General","court_level":"Appellate","appellate_district":"1st","year":2021,"county":"Cook","appellate_docket":"1-20-0225","circuit_docket":"19-CH-6649","published":1,"authoring_justice":"Hoffman","statute":["FOIA"],"exemptions_cited":["7(1)(f)"],"public_body":"Office of the Illinois Attorney General","requesting_party":"Ian H. Fisher","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the denial of a FOIA request, holding that communications between the Attorney General's office and a third-party claims administrator regarding a settlement distribution plan constituted exempt deliberative material under section 7(1)(f) of the Act. The court found these records were part of the agency's internal process for formulating policy and final distribution plans.","best_text_source":"Court Opinions - FOIA/Fisher v. Office of the Illinois Attorney General, 2021 IL App (1st) 200225.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:32.596567","site_category":"General Records Exemptions","date_decided":"2021-03-12","site_url":"/cases/2021%20IL%20App%20(1st)%20200225/","text_url":"/case-text/2021%20IL%20App%20(1st)%20200225.txt","full_text":" Digitally signed\n by Reporter of\n Decisions\n Reason: I attest\n Illinois Official Reports to the accuracy\n and integrity of\n this document\n Appellate Court Date: 2022.08.30\n 09:31:10 -05'00'\n\n\n\n Fisher v. Office of the Illinois Attorney General, 2021 IL App (1st) 200225\n\n\n\nAppellate Court IAN H. FISHER, Plaintiff-Appellant, v. THE OFFICE OF THE\nCaption ILLINOIS ATTORNEY GENERAL, by Its Attorney General,\n Kwame Raoul, Defendant-Appellee.\n\n\n\nDistrict & No. First District, Fifth Division\n No. 1-20-0225\n\n\n\nFiled March 12, 2021\n\n\n\nDecision Under Appeal from the Circuit Court of Cook County, No. 19-CH-6649; the\nReview Hon. Raymond W. Mitchell, Judge, presiding.\n\n\n\nJudgment Affirmed.\n\n\nCounsel on Gillian G. Lindsay, of Hahn Loeser & Parks LLP, of Chicago, for\nAppeal appellant.\n\n Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,\n Solicitor General, and Laura Wunder, Assistant Attorney General, of\n counsel), for appellee.\n\f Panel JUSTICE HOFFMAN delivered the judgment of the court, with\n opinion.\n Justices Cunningham and Rochford concurred in the judgment and\n opinion.\n\n\n OPINION\n\n¶1 The plaintiff, Ian H. Fisher, appeals from an order of the circuit court of Cook County,\n which denied his motion for summary judgment and granted summary judgment in favor of\n the defendant, the Office of the Illinois Attorney General (OAG), on its cross-motion. On\n appeal, the plaintiff argues that the circuit court erred in finding that the records he requested\n from the OAG pursuant to the Freedom of Information Act (FOIA or Act) (5 ILCS 140/1\n et seq. (West 2018)) were exempt from disclosure. For the reasons that follow, we affirm.\n¶2 The following factual recitation is derived from the pleadings, motions, and exhibits of\n record.\n¶3 In the fall of 2012, the OAG filed a parens patriae action against several cathode ray tube\n (CRT) manufacturers, alleging that they conspired to fix prices on certain products resulting\n in overcharges to Illinois consumers. See State v. Hitachi, Ltd., No. 12-CH-35266 (Cir. Ct.\n Cook County). Between July 2016 and March 2018, the OAG entered into settlement\n agreements with all of the manufacturers for a total of nearly $50 million. Each settlement\n agreement states that the agreement will not become final until such time as the circuit court\n enters a final judgment providing, inter alia, that the settlement funds be distributed to eligible\n claimants “within the discretion of the Illinois Attorney General” and each of the CRT\n manufacturers are dismissed with prejudice. As of yet, the circuit court has not entered such\n an order.\n¶4 On November 20, 2017, the circuit court entered an order on a joint motion for approval\n of a notice plan. In its order, the court approved the contents of the settlement notices prepared\n by the OAG, preliminarily approved of the publication notice plan, and authorized the OAG\n to use settlement funds to pay Kurtzman Carson Consultants (KCC) to implement the notice\n plan and administer the claims process. Subsequently, KCC published the settlement notice to\n the public.\n¶5 The plaintiff in the instant case represents several clients that submitted claims as part of\n the CRT settlement. Each of the plaintiff’s clients filled out the claim form indicating that they\n purchased the CRT products in Illinois during the relevant time frame and either resided in\n Illinois or were incorporated or headquartered in Illinois. After several communications with\n KCC, the plaintiff was informed that the majority of his clients’ claims did not meet the\n eligibility requirement because they did not purchase the CRT products “for use” in Illinois.\n When the plaintiff asked KCC about the requirement that the CRT product must have been\n purchased for use in the state, KCC responded, “Per the AG’s direction, and as referenced in\n the Notice, eligible purchases must be for use in the state of Illinois.” The plaintiff next\n contacted the OAG directly, arguing that the “use” requirement was contrary to the language\n of the settlement agreements, the claim form, the purpose of the Illinois Antitrust Act, and\n relevant case law construing the Illinois Antitrust Act and similar state laws. On February 22,\n 2019, the OAG responded to the plaintiff, rejecting his contentions.\n\n -2-\n\f¶6 On April 8, 2019, the plaintiff submitted a FOIA request to the OAG, seeking certain\n records related to the CRT settlement. Relevant to this appeal, the plaintiff requested the\n following records:\n “All communications between the Office of the Attorney General and the Class\n Settlement Administrator, KCC Class Action Services LLC, concerning the eligibility\n requirements for the submission of claims for the Class Settlement in the Illinois CRT\n Settlement.\n All communications with the Office of the Attorney General concerning whether a\n claimant in the Illinois CRT Settlement is required to establish that a CRT or CRT\n Product was either used in Illinois or purchased for use in Illinois.\n All communications from the Office of the Attorney General to the Class\n Settlement Administrator, KCC Class Action Services LLC, instructing that one or\n more claims in the Illinois CRT Settlement be denied or found deficient.”\n¶7 The OAG denied the plaintiff’s request for records, citing section 7(1)(f) of the Act, also\n known as the deliberative process exemption. Section 7(1)(f) of the Act exempts from\n disclosure “[p]reliminary drafts, notes, recommendations, memoranda and other records in\n which opinions are expressed, or policies or actions are formulated.” 5 ILCS 140/7(1)(f) (West\n 2018). In its denial letter, the OAG stated that the responsive records “consist of\n communications between this office and outside consultants written for the purpose of\n planning courses of action with regard to assessing claims. These records are predecisional.”\n¶8 On May 31, 2019, the plaintiff filed a two-count complaint, seeking declaratory and\n injunctive relief based upon the OAG’s denial of his FOIA request. In count I, he sought an\n order declaring that (1) he had a right to the production of the requested records pursuant to\n section 2(c) of the Act (5 ILCS 140/2(c) (West 2018)), (2) the requested records do not fall\n within the disclosure exemption listed under section 7(1)(f) of the Act (5 ILCS 140/7(1)(f)\n (West 2018)), and (3) he is entitled to reasonable attorney fees and costs. In count II, he sought\n an order declaring that the OAG violated the Act by withholding the requested records,\n enjoining the OAG from further withholding the records, and granting attorney fees and costs\n pursuant to section 11(i) of the Act (5 ILCS 140/11(i) (West 2018)).\n¶9 On August 1, 2019, the OAG filed its answer and affirmative defenses to the plaintiff’s\n complaint, asserting that the responsive records are exempt from disclosure under section\n 7(1)(f) of the Act (5 ILCS 140/7(1)(f) (West 2018)). The OAG also asserted that some of the\n responsive records were prepared “for purposes of responding to attempts by certain parties to\n intervene” in the CRT litigation and are therefore exempt from disclosure under section\n 7(1)(m) of the Act, which exempts from disclosure “materials prepared or compiled by or for\n a public body in anticipation of a criminal, civil or administrative proceeding upon the request\n of an attorney advising the public body.” 5 ILCS 140/7(1)(m) (West 2018).\n¶ 10 On October 7, 2019, the OAG filed an index of the responsive records, pursuant to the\n plaintiff’s motion made under section 11(e) of the Act (5 ILCS 140/11(e) (West 2018)).\n Thereafter, the OAG filed its amended affirmative defenses, in which it asserted that all\n responsive communications were exempt from disclosure under both sections 7(1)(f) and\n 7(1)(m) of the Act. As to section 7(1)(m) of the Act, the OAG now asserted that the responsive\n records were exempt because they\n\n\n\n -3-\n\f “include materials prepared by [the OAG] or by KCC for [the OAG] for purposes of\n evaluating claims for the settlement proceeds, addressing challenges by claimants to\n KCC’s initial determinations, and developing a final distribution plan after all claims\n are audited that [the OAG] will present for final approval to the court.”\n¶ 11 Both parties then moved for summary judgment. The plaintiff argued that he was entitled\n to summary judgment because the requested records did not fall within the deliberative process\n exemption as they were neither inter or intra-agency material, nor predecisional and\n deliberative agency material. He also argued that the requested records do not fall within\n section 7(1)(m) of the Act because he requested only communications between the OAG and\n KCC, not “materials” that the OAG asked KCC to prepare.\n¶ 12 The OAG filed a cross-motion for summary judgment, arguing that the responsive records\n were exempt from disclosure under both sections 7(1)(f) and 7(1)(m) of the Act. In support of\n its cross-motion, the OAG attached two affidavits: one from Blake Harrop, the lead prosecuting\n attorney for the CRT litigation, and one from Andrew Perry, the senior project manager for\n KCC.\n¶ 13 Harrop averred that KCC was retained “to evaluate claim forms and other material\n submitted by claimants in support of their claims and to provide to the OAG its opinions,\n analysis, and recommendations as to the validity of the claims in light of the eligibility\n requirements established by the OAG.” Harrop acknowledged that the “vast majority” of\n claims did not require the OAG’s day-to-day involvement, but he explained that KCC regularly\n advised the OAG regarding the status of the claims process and the OAG became directly\n involved when an issue arose or a claimant objected to KCC’s initial determination. Harrop\n also stated that “[i]t has always been the understanding between OAG and KCC that whether\n to accept or deny a claim and, if accepted, the allowed amount of the claim were subject to\n final determination by the OAG.” Perry averred that KCC performed the following functions\n for the OAG as claims administrator: reviewed claim forms, applied criteria to detect possible\n fraud, evaluated the reasonableness of a claimant’s techniques to estimate the number of CRT\n products purchased, handled telephone and email inquiries from claimants, and audited claims.\n Perry explained that KCC makes the “initial determination about whether a claim should be\n paid,” but “the OAG has the discretion to make changes to KCC’s recommendation.”\n¶ 14 On January 28, 2020, the circuit court entered an order denying the plaintiff’s motion for\n summary judgment and granting summary judgment in favor of the OAG on its cross motion.\n In its written decision, the court concluded that responsive records were exempt from\n disclosure under section 7(1)(f) of the Act. Specifically, the court found that “KCC was\n retained to provide analysis and recommendations in furtherance of the OAG’s objective to\n distribute settlement proceeds,” and therefore, the responsive documents were intra-agency\n material. The court rejected the plaintiff’s argument that the material was not predecisional,\n finding instead that “KCC’s work for the OAG and all of the communications resulting\n therefrom relate to a pending decision regarding to whom to distribute the settlement\n proceeds.” The court also rejected his argument that KCC’s work was a “ministerial\n application of objective [eligibility] criteria,” noting that it was belied by the affidavits attached\n to the OAG’s motion, which described the deliberative functions that KCC performed. Having\n found that the OAG properly withheld the materials under section 7(1)(f) of the Act, the court\n concluded that it did not need to determine whether the responsive records were also exempt\n under section 7(1)(m) of the Act. This appeal followed.\n\n -4-\n\f¶ 15 On appeal, the plaintiff argues that the circuit court erred when it found that the records he\n requested were exempt under the Act. He, therefore, asks this court to reverse the circuit court’s\n order granting the OAG’s cross-motion for summary judgment and enter judgment in his favor.\n¶ 16 Summary judgment is appropriate when “the pleadings, depositions, and admissions on\n file, together with the affidavits, if any, show that there is no genuine issue as to any material\n fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-\n 1005(c) (West 2018). When, as here, the parties file cross-motions for summary judgment,\n “they concede the absence of a genuine issue of material fact, agree that only questions of law\n are involved, and invite the court to decide the issues based on the record.” Stevens v.\n McGuireWoods LLP, 2015 IL 118652, ¶ 11. Notwithstanding, the “filing of cross-motions for\n summary judgment does not establish that there is no issue of material fact, nor does it obligate\n a court to render summary judgment.” Pielet v. Pielet, 2012 IL 112064, ¶ 28. Our review of\n the circuit court’s ruling on a motion for summary judgment is de novo. Stevens, 2015 IL\n 118652, ¶ 11.\n¶ 17 FOIA is based upon the policy that persons must be given complete access to information\n “regarding the affairs of government and the official acts and policies of those who represent\n them as public officials and public employees.” 5 ILCS 140/1 (West 2018); American\n Federation of State, County & Municipal Employees (AFSCME) v. County of Cook, 136 Ill. 2d\n 334, 341 (1990). Like its federal counterpart, FOIA requires full disclosure unless the desired\n information is exempted under clearly delineated statutory language. Lieber v. Southern\n Illinois University, 279 Ill. App. 3d 553, 560 (1996); see also United States Department of\n Defense v. Federal Labor Relations Authority, 510 U.S. 487 (1994). When the government\n claims an exemption, it must prove that the exemption applies by clear and convincing\n evidence. 5 ILCS 140/11(f) (West 2018).\n¶ 18 In the instant case, the OAG initially denied the plaintiff’s request, claiming that the\n responsive records were exempt from disclosure under section 7(1)(f) of the Act. In its\n amended affirmative defenses, the OAG asserted that the responsive documents were exempt\n from disclosure under both sections 7(1)(f) and 7(1)(m) of the Act. The court below found that\n the documents were exempt under section 7(1)(f) of the Act and, therefore, did not reach the\n issue of whether they were also exempt under section 7(1)(m) of the Act. We address first the\n OAG’s contention that the responsive documents are exempt under section 7(1)(f) of the Act.\n¶ 19 Section 7(1)(f) of the Act states that the government is entitled to withhold “preliminary\n drafts, notes, recommendations, memoranda and other records in which opinions are\n expressed, or policies or actions are formulated.” 5 ILCS 140/7(1)(f) (West 2018). This\n provision is “the equivalent of the ‘deliberative process’ exemption found in section 552(b)(5)\n of the federal Freedom of Information Act, which exempts from disclosure inter- and intra-\n agency predecisional and deliberative material.” Harwood v. McDonough, 344 Ill. App. 3d\n 242, 247 (2003). The deliberative process exemption expresses the public policy favoring the\n confidentiality of predecisional materials and “is intended to protect the communications\n process and encourage frank and open discussion among agency employees before a final\n decision is made.” Harwood, 344 Ill. App. 3d at 248. Thus, in order to be exempt under this\n provision, the responsive materials must be both (1) inter-agency or intra-agency and\n (2) predecisional and deliberative.\n¶ 20 As to the first requirement, that the materials must be either inter or intra agency, there is\n no dispute that the communications between the OAG and KCC are not inter-agency materials,\n\n -5-\n\f as KCC is an outside consultant and not a government agency. However, communications\n between government agencies and an outside consultant may be considered intra-agency\n material for the purposes of the deliberative process exemption if the outside consultant’s\n analyses and recommendations “ ‘played essentially the same part in an agency’s process of\n deliberation as documents prepared by agency personnel might have done.’ ” Harwood, 344\n Ill. App. 3d at 248 (quoting Department of the Interior v. Klamath Water Users Protective\n Ass’n, 532 U.S. 1, 10 (2001)). For communications with outside consultants to qualify as\n “intra-agency,” the consultant may not represent independent interests of its own apart from\n those of the agency. Harwood, 344 Ill. App. 3d at 248.\n¶ 21 The plaintiff maintains that the requested materials are not intra-agency material because\n KCC was hired by the OAG to perform an administrative function, not to provide expert\n advice. The OAG responds that the plaintiff’s contentions ignore the affidavits it attached in\n support of its cross-motion for summary judgment, averring that KCC provided it with analysis\n and recommendations regarding to whom to distribute the settlement proceeds, which it will\n ultimately use to create the final settlement distribution plan. We agree with the OAG.\n¶ 22 To demonstrate that the requested records fall within an exemption, and to assist the court\n in making its determination, a public body must provide a detailed explanation for claiming an\n exemption, specifically addressing the requested documents in a manner allowing for adequate\n adversarial testing. Watkins v. McCarthy, 2012 IL App (1st) 100632, ¶ 13. “The trial court\n shall require the agency to create as full a public record as possible concerning the nature of\n the documents and the justification for nondisclosure without compromising the secret nature\n of the information.” Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530, 542 (1989).\n Furthermore, a public body can satisfy its burden only by providing objective indicia that an\n exemption applies under the circumstances. See Illinois Education Ass’n v. Illinois State Board\n of Education, 204 Ill. 2d 456, 470 (2003).\n¶ 23 Pursuant to section 11(f) of the Act, the circuit court “shall conduct such in camera\n examination of the requested records as it finds appropriate to determine if such records or any\n part thereof may be withheld under any provision of this Act.” 5 ILCS 140/11(f) (West 2018);\n Illinois Education Ass’n, 204 Ill. 2d at 469. Our supreme court has interpreted this section to\n mean “the circuit court need not conduct an in camera review where the public body meets its\n burden of showing that the statutory exemption applies by means of affidavits.” Illinois\n Education Ass’n, 204 Ill. 2d at 469. “Affidavits submitted by an agency are accorded a\n presumption of good faith ***.” (Internal quotation marks omitted.) BlueStar Energy Services,\n Inc. v. Illinois Commerce Comm’n, 374 Ill. App. 3d 990, 997 (2007). Affidavits will not\n suffice, however, “if the public body’s claims are conclusory, merely recite statutory standards,\n or are too vague or sweeping.” Illinois Education Ass’n, 204 Ill. 2d at 469.\n¶ 24 After reviewing the OAG’s supporting affidavits, we conclude that they are not conclusory\n or vague and are, therefore, sufficient to carry its burden of proving that the responsive records\n are intra-agency materials. Harrop stated in his affidavit that the OAG could have handled all\n aspects of the claims process internally, but it instead hired KCC to initially evaluate submitted\n claims and provide its “opinions, analyses, and recommendations as to the validity of the\n claims in light of the eligibility requirements established by the OAG.” According to Harrop,\n KCC regularly discusses matters relating to the settlement claims with the OAG, including\n issues that arise with particular claims. Perry further elaborated on KCC’s role in the claims\n process, stating in his affidavit that KCC “reviewed claim forms, applied criteria to detect\n\n -6-\n\f possible fraud, evaluated the reasonableness of a claimant’s techniques to estimate the number\n of CRT products purchased, handled telephone and email inquiries from claimants, and audited\n claims.” We conclude, therefore, that KCC performed essentially the same function in the\n OAG’s deliberative process as the OAG would have performed if it had chosen to perform the\n preliminary review of each claim. We also conclude that, in performing this function, KCC\n represented only the interests of the OAG. Accordingly, the responsive materials constitute\n intra-agency material for the purposes of the deliberative process exemption.\n¶ 25 The plaintiff nevertheless contends that the “contract” between the OAG and KCC, along\n with several comments made by the OAG and KCC in the CRT litigation, refutes the OAG’s\n “after-the-fact attempts to shoehorn” its relationship with KCC into the deliberative process\n exemption. According to him, the contract confirms that KCC was nothing more than “a third\n party hired to perform an administrative function.” He also points out that both the OAG and\n KCC made certain prior statements suggesting that KCC alone was responsible for determining\n a claimant’s eligibility. Essentially, the plaintiff’s argument is that the OAG’s affidavits should\n be viewed with suspicion. We find the plaintiff’s contentions in this regard unavailing.\n¶ 26 To begin, we reiterate that affidavits are assumed to be in good faith. BlueStar Energy\n Services, Inc., 374 Ill. App. 3d at 997. Moreover, contrary to the plaintiff’s contentions, there\n is nothing in either the contract or in the prior statements it cites that is at odds with the\n affidavits of Harrop and Perry. For example, the contract states, under scope of services, that\n KCC will “ensure that all settlement agreement requirements have been satisfied and approve\n or deny individual class claims” and then “provide the appropriate parties with the approved\n claimants list, including the distribution calculations for each claim.” The contract also states\n that KCC would notify claimants whose claims were rejected. Put simply, this general\n description of KCC’s services does not conflict with the affidavits. Both the contract and the\n affidavits acknowledge that KCC would be responsible for initially determining a claimant’s\n eligibility based on the requirements supplied by the OAG, which the OAG would then use to\n help it prepare a final distribution plan to submit to the circuit court. The affidavits merely\n provide a more detailed look at how KCC went about performing that function.\n¶ 27 The plaintiff also argues that, even if the communications between KCC and the OAG are\n intra-agency material, they still fall outside of the deliberative process exemption because they\n do not contain predecisional and deliberative material. “[T]o qualify for the deliberative\n process exemption, a document must be both predecisional in the sense that it is actually\n antecedent to the adoption of an agency policy and deliberative in the sense that it is actually\n related to the process by which policies are formulated.” Chicago Tribune Co. v. Cook County\n Assessor’s Office, 2018 IL App (1st) 170455, ¶ 28.\n¶ 28 According to the plaintiff, the withheld records do not contain predecisional material\n because the OAG already made its final decision regarding to whom to distribute the settlement\n proceeds when it entered into the settlement agreements and published the settlement notice.\n He also contends that the determination as to whether specific claimants meet the eligibility\n requirements set forth in the notice is an administrative decision, not a deliberative one. The\n OAG responds that publication of the settlement notice did not end its deliberative process\n because it still needed to determine which claimants satisfied the eligibility requirements and\n what amount each claimant was owed. According to the OAG, that deliberative process is not\n final until it submits a distribution plan to the circuit court for approval, per the terms of the\n settlement agreements. The OAG also responds that the plaintiff’s contention that determining\n\n -7-\n\f whether claimants are eligible is an administrative decision, not a deliberative one, ignores the\n affidavits of Harrop and Perry. We once again agree with the OAG.\n¶ 29 Each of the individual settlement agreements state that the terms of the agreement are not\n final until such time as the circuit court enters a final judgment providing, inter alia, that the\n settlement funds be distributed to eligible claimants “within the discretion of the Illinois\n Attorney General” and each of the CRT manufacturers are dismissed with prejudice. As Harrop\n stated in his affidavit, the OAG has not yet submitted the final distribution plan to the court.\n Consequently, no final determination has been made regarding which claimants met the\n eligibility requirements and what amount they are owed. We conclude, therefore, that the\n requested communications between the OAG and KCC are predecisional because they are\n antecedent to the OAG adopting and submitting a final distribution plan to the circuit court.\n¶ 30 We also find that the responsive records are deliberative material because the\n communications between the OAG and KCC are related to the process by which the OAG\n formulates its policies. According to the settlement agreements, the OAG is responsible for\n developing a plan to distribute the settlement funds to eligible claimants. Although the\n published notice set forth requirements for participation in the settlement, the final distribution\n plan necessarily requires a determination as to which claimants satisfied those requirements\n and what amount they are owed. Rather than evaluate each of the claims on its own, the OAG\n retained a third party, KCC, to make an initial determination subject to its approval. To that\n end, KCC reviewed claims and then made recommendations to the OAG, involving the OAG\n directly only when there was an issue or a claimant objected to the initial determination. We\n conclude, therefore, that the records responsive to the plaintiff’s request are part of the OAG’s\n process for creating its final distribution plan in the CRT litigation. Accordingly, the OAG\n properly withheld the records under section 7(1)(f) of the Act.\n¶ 31 Having so determined, we need not address whether the records were also exempt from\n disclosure under section 7(1)(m) of the Act.\n¶ 32 Based on the foregoing analysis, we affirm the judgment of the circuit court of Cook\n County.\n\n¶ 33 Affirmed.\n\n\n\n\n -8-\n\f"} {"dedup_key":"2021 IL App (1st) 200424-U","dedup_key_type":"neutral_citation","neutral_citation":"2021 IL App (1st) 200424-U","case_name":"Watson v. Foxx","court_level":"Appellate","appellate_district":"1st","year":2021,"county":"Cook","appellate_docket":"1-20-0424","circuit_docket":"2016 CH 10481","published":0,"authoring_justice":"Fitzgerald Smith","statute":["FOIA"],"exemptions_cited":[],"public_body":"Cook County State's Attorney's Office","requesting_party":"Nolan Watson","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The appellate court affirmed the dismissal of the plaintiff's complaint for FOIA costs and civil penalties. The court held that the plaintiff failed to demonstrate entitlement to attorney fees or civil penalties under sections 11(i) or 11(j) of FOIA.","best_text_source":"Court Opinions - FOIA/cleaned_text_files/1200424_R23.txt","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:33.475971","site_category":"Fees & Burdensome Requests","date_decided":"2021-02-16","site_url":"/cases/2021%20IL%20App%20(1st)%20200424-U/","text_url":"/case-text/2021%20IL%20App%20(1st)%20200424-U.txt","full_text":"2021 IL App (1st) 200424-U\r\nSECOND DIVISION\r\nFebruary 16, 2021\r\nNo. 1-20-0424\r\nNOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in\r\nthe limited circumstances allowed under Rule 23(e)(1).\r\n____________________________________________________________________________\r\nIN THE\r\nAPPELLATE COURT OF ILLINOIS\r\nFIRST DISTRICT\r\n____________________________________________________________________________\r\n_\r\nNOLAN WATSON, ) Appeal from the Circuit Court\r\n) of Cook County.\r\nPlaintiff-Appellant, )\r\n)\r\nv. ) No. 2016 CH 10481\r\n)\r\nKIMBERLY FOXX, in her official capacity as )\r\nState's s Attorney of Cook County, )\r\n)\r\nDefendant-Appellee )\r\n)\r\n(Kimberly M. Foxx, in her official capacity as )\r\nState's s Attorney of Cook County, Assistant State's s )\r\nAttorney Paul Castiglione, and the Office of the )\r\nState's s Attorney of Cook County, ) The Honorable\r\n) David B. Atkins,\r\nDefendants). ) Judge Presiding.\r\n____________________________________________________________________________\r\nPRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the\r\ncourt.\r\nJustices Lavin and Cobbs concurred in the judgment.\r\nORDER\r\nNo. 1-20-0424\r\nHELD: Trial court's s order dismissing plaintiff's s complaint for costs and civil\r\npenalties under FOIA was proper, as the circumstances presented show plaintiff was not\r\nentitled to them pursuant to sections 11(i) or (j).\r\n\r\n¶ 1\r\nPlaintiff-appellant Nolan Watson (plaintiff) appeals pro se from the trial court's s grant of a motion to dismiss his complaint filed by defendant-appellee the office of the State's s Attorney of Cook County.1 He contends that the trial court impermissibly denied him his “entitled award of costs, civil penalties, plus the complete records requested” related to a Freedom of Information Act (FOIA or Act) (5 ILCS 140/1 et seq. (West 2014)) cause of action he originally filed in 2015. He asks that we award him costs and civil penalties against the State's s Attorney's s office in the amount of $18,831.91, and that we order the production to him of various “full” (unredacted) records, communications, copies, and transcripts. For the following reasons, we affirm.\r\n\r\n¶ 2\r\nBACKGROUND\r\n\r\n¶ 3\r\nAs noted, this is not the first time this matter has been brought to our Court. See Watson v. Kimberly M. Foxx, in her official capacity as State's s Attorney of Cook County, et al., Nos. 1-18-2313 & 1-19-0707 (cons.) (Jan. 21, 2020) (unpublished summary order pursuant to Illinois Supreme Court Rule 23(c)(1) (eff. April 1, 2018)). 1 In a prior decision issued by this Court with respect to this same matter, we noted that the defendants named in plaintiff's s complaint were Anita Alvarez, in her capacity as the State's s Attorney of Cook County, Assistant State's s Attorney Paul Castiglione, and the Office of the State's s Attorney of Cook County. We further noted that Kimberly Foxx succeeded Anita Alvarez as State's s Attorney of Cook County on December 1, 2016, and we allowed a motion to correct the caption and substitute her as a defendant in this cause. Plaintiff has refiled this same appeal against, again, Anita Alvarez, but has this time included Kimberly Foxx, as well. Similar to our notations then, we caption this cause accordingly and, again, for ease of reference, we refer to defendants as the “State's s Attorney's s office.” See Watson v. Kimberly M. Foxx, in her official capacity as State's s Attorney of Cook County, et al., Nos. 1-18-2313 & 1-19-0707 (cons.) (2020) (unpublished summary order pursuant to Illinois Supreme Court Rule (Rue) 23(c)(1) (eff. April 1, 2018)). 2 No. 1-20-0424\r\n\r\n¶ 4\r\nIn November 2015, plaintiff filed a complaint against the State's s Attorney's s office alleging that it failed to properly and adequately comply with a request he made on May 7, 2015 under FOIA for copies of discovery, common law records, line-up records and police and State's s Attorney's s interrogation and investigation records of witnesses and victims involved in five criminal cases against him, pursuant to which he was convicted of varying degrees of sexual offenses.2 Following transfer of the cause to the Circuit Court of Cook County, the trial court granted plaintiff's s request to file an amended complaint, which he did in April 2017.\r\n\r\n¶ 5\r\nIn July 2017, the trial court entered an order in the matter providing that, by August 21, 2017, the State's s Attorney's s office was to supply the plaintiff with documents from his criminal files subject to any exemptions or redactions appropriate under FOIA and to supply the court with a list of documents for which it would be claiming exemptions or redactions. It also ordered a status date of August 28, 2017.\r\n\r\n¶ 6\r\nOn August 21, 2017, the State's s Attorney produced copies of all 2,867 pages of record to plaintiff contained in the criminal files he sought in his FOIA request, subject to redactions 2 The records plaintiff sought under FOIA were those related to five criminal cases instituted against him labeled “04CR7326, 04CR7327, 04CR7328, 04CR7329, and 04CR7330.” As a result of these, plaintiff is currently serving an aggregate term of 40 years in prison imposed in 2006 following jury convictions on two counts of aggravated criminal sexual assault of a minor. He pled guilty in four additional cases involving sexual offenses against four other minors and received prison terms to run concurrently with the sentences imposed from his convictions. He filed three appeals in this Court regarding his criminal trial. We affirmed the jury convictions on direct appeal (People v. Watson, 2011 IL App (1st) 080315-U); we affirmed the trial court's s summary dismissal of his postconviction petition as frivolous and patently without merit (People v. Watson, 2012 IL App (1st) 092249-U); and we affirmed the trial court's s denial of leave to file a successive postconviction petition (People v. Watson, 2014 IL App (1st) 121163-U). We also note for the record that in his brief on appeal, plaintiff insists he was “never convicted for crimes against minors, each of the alleged victims in each of his cases were adults.” This is in direct contradiction to the records, facts, and holdings issued in each of his criminal appeals noted here. 3 No. 1-20-0424 and exclusions recorded in an exemption log, by certified mail, return receipt requested. On August 28, 2017, the trial court ordered the State's s Attorney's s office to provide it with electronic copies of the records it had turned over to plaintiff that contained redactions, along with a privilege log by September 8, 2017. The State's s Attorney's s office did so on August 29, 2017, providing the trial court with a disc containing a copy of all unredacted records as well as a copy of the redacted records produced to plaintiff, along with its exemption log identifying and explaining the redactions and those documents it had withheld from him in their entirety.\r\n\r\n¶ 7\r\nAlmost one year later, on August 22, 2018, plaintiff filed a pro se “Motion for Fees, Costs, and Equitable Damages Civil Penalties,” wherein he asked the trial court to award him $15,461.29 in fees, costs, and civil penalties he calculated for items including copies, materials, postage, pro se lawyer fees, and preparation fees pertaining to his 2015 FOIA request. He also cited several “occurrences” in his motion wherein he alleged the State's s Attorney's s office “intentionally and knowingly” refused to disclose records it was otherwise supposed to, ignored the mandates of FOIA, and withheld his property, to wit, the records he sought. On August 30, 2018, the trial court held a previously scheduled case management conference , at which plaintiff did not appear. The court set a briefing schedule with respect to plaintiff's s cause.\r\n\r\n¶ 8\r\nOn September 4, 2018, the State's s Attorney's s office filed a motion to dismiss both the plaintiff's s complaint and his motion for fees pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2018), arguing that the cause 4 No. 1-20-0424 was moot because the State's s Attorney's s office had provided him with all documents from his criminal files subject only to redactions allowed under FOIA. The State's s Attorney's s office also asked the court to conduct an in camera inspection of the documents withheld in its privilege log to determine whether the documents qualified for the exemptions claimed and that, therefore, it had complied with plaintiff's s FOIA request.\r\n\r\n¶ 9\r\nBefore the trial court could address the State's s Attorney's s motion to dismiss, plaintiff filed a notice of appeal on September 11, 2018, with respect to the “circuit court's s dismissal made on 8/30/18,” stating he had to do so because he did not know the outcome of the court proceedings of August 30 since he had not appeared. That appeal was docketed in our Court as case No. 1-18-2313.\r\n\r\n¶ 10\r\nMeanwhile, plaintiff went on to file a brief in opposition to the State's s Attorney's s motion to dismiss. Therein, he asserted that the State's s Attorney's s office had made multiple misrepresentations in its motion and that an actual controversy still existed requiring resolution by the trial court, i.e., an award of fees. On November 8, 2018, the trial court took the State's s Attorney's s motion to dismiss under advisement.\r\n\r\n¶ 11\r\nOn March 7, 2019, the trial court granted the State's s Attorney's s motion to dismiss and denied plaintiff's s motion for fees. In its written order, the court held that the State's s Attorney's s office was correct in its mootness argument, as the record showed that the State's s Attorney had produced the requested records subject only to appropriate redaction, that plaintiff did not dispute he had received them, and that plaintiff failed to provide a persuasive “interest of justice” argument that would require disclosure of otherwise exempt documents, 5 No. 1-20-0424 which he failed to even specify. The court further held that plaintiff's s demands for fees were inappropriate, since the State's s Attorney's s office “did in fact produce the documents shortly after the inception of this case, and [p]laintiff raises no facts suggesting a failure to do so in bad faith.” Accordingly, the court dismissed plaintiff's s cause with prejudice in its entirety.\r\n\r\n¶ 12\r\nOn March 26, 2019, plaintiff filed a motion for reconsideration of the trial court's s order of March 7, 2019. In that motion, he argued that the trial court had been divested of jurisdiction to enter that order based on the fact that he had filed a notice of appeal on September 11, 2018 in our Court, and therefore the March 7, 2019 order was void. However, before his own motion for reconsideration could be heard, plaintiff, on April 3, 2019, filed a notice of appeal of the trial court's s March 7, 2019 order. That appeal was docketed in our Court as case No. 1-19-0707 and was consolidated with plaintiff's s other pending cause, case No. 1-18-2313.\r\n\r\n¶ 13\r\nOn January 21, 2020, this Court entered a summary order under Rule 23(c)(1) dismissing plaintiff's s consolidated appeal as untimely pursuant to Rule 303(a)(2) because the trial court had not yet ruled on plaintiff's s motion to reconsider its order of March 7, 2019. In our decision, we reminded the parties that, although plaintiff's s notice of appeal was presently premature, it would “become effective” when an order disposing of the motion to reconsider was entered by the trial court or, alternatively, if plaintiff filed in the trial court a document affirmatively indicting that he was withdrawing or abandoning his motion for reconsideration. We further noted that, if one of these things occurred, then plaintiff could properly return to our Court with either a petition for rehearing and motion to supplement the 6 No. 1-20-0424 record showing that the impediment to jurisdiction had been removed, or plaintiff could file a new notice of appeal once the impediment to appellate jurisdiction had been removed.\r\n\r\n¶ 14\r\nOn February 11, 2020, the trial court entered an order denying plaintiff's s motion to reconsider its order of March 7, 2019. In that order, the trial court noted that plaintiff had raised only one basis for reconsideration of the trial court's s grant of the State's s Attorney's s motion to dismiss his cause, namely, that the grant was improper because the court lacked jurisdiction based on his notice of appeal filed in our Court on September 11, 2018 seeking to appeal “the circuit court's s dismissal of 8/30/18,” which he stated he was “forced” to file because he could not attend the status hearing on that date. The court explained that on August 30, 2018, contrary to any insistence by plaintiff, it had not dismissed his claim but, instead, had only entered a briefing schedule; it had not entered any substantive rulings nor a final and appealable order. The court noted that plaintiff filed his September 11 notice of appeal anticipatorily in the event the court had dismissed his cause on August 30 which, again, it had not.\r\n\r\n¶ 15\r\nFollowing this ruling by the trial court, and with the impediment to appellate jurisdiction removed, plaintiff timely filed a new notice of appeal from the trial court's s March 7, 2019 order granting the State's s Attorney's s motion to dismiss his cause and denying his motion for fees, and from its February 11, 2020 order denying his motion to reconsider that order. Accordingly, plaintiff has now procedurally perfected the instant appeal in our Court and we are called to address its merits. 7 No. 1-20-0424\r\n\r\n¶ 16\r\nANALYSIS\r\n\r\n¶ 17\r\nOn appeal, plaintiff contends that the trial court “impermissibly denied [him] his entitled award of costs, civil penalties, plus the complete records requested.” Essentially, he asserts that he deserves this recompense because the State's s Attorney's s office “intentionally and in bad faith” initially ignored his FOIA request and delayed in producing the records he requested. He further asserts that the trial court “made a mistake” in dismissing his cause, as his monetary request was mandated to be awarded under “Section 11(i) of the FOIA,” which “divested the circuit court of any discretion to deny [his] entitled award of costs” and “civil penalties were mandated.” Upon our review of the record, we disagree.\r\n\r\n¶ 18\r\nAgain, plaintiff appeals from the trial court's s grant of the State's s Attorney's s section 2- 619(a)(9) motion to dismiss. While a motion to dismiss pursuant to section 2-619(a)(9) admits the legal sufficiency of the complaint, it raises affirmative matters either internal or external from the complaint that would defeat the cause of action. See 735 ILCS 5/2- 619(a)(9) (West 2018). An \"affirmative matter\" is \"something in the nature of a defense that negates the cause of action completely or refutes crucial conclusions of law or conclusions of material fact contained in or inferred from the complaint.\" Glisson v. City of Marion, 188 Ill. 2d 211, 220 (1999). The affirmative matter must either appear on the face of the complaint or be supported by affidavits or other evidentiary materials of record. See Van Meter v. Darien Park Dist., 207 Ill. 2d 359, 377 (2003). Once a defendant meets this burden, the plaintiff's right to recover is barred. See Van Meter, 207 Ill. 2d at 370. 8 No. 1-20-0424\r\n\r\n¶ 19\r\nA section 2-619(a)(9) motion provides a means to dispose not only of issues of law but also issues of easily proved fact, and a trial court may in its discretion properly decide questions of undisputed fact upon hearing such a motion. See Consumer Electric Co. v. Cobelcomex, Inc., 149 Ill. App. 3d 699, 703-04 (1896); see also Czarobski v. Lata, 227 Ill. 2d 364, 369 (2008) (\"[t]he purpose of a section 2-619 motion is to dispose of issues of law and easily proved issues of fact early in the litigation\"); Villanueva v. Toyota Motor Sales, U.S.A., Inc., 373 Ill. App. 3d 800, 802 (2007) (complaint is properly dismissed under this section if barred by affirmative matter and this matter defeats claim and avoids its legal effect); Martinez v. Gutmann Leather, LLC, 372 Ill. App. 3d 99, 101 (2007) (section 2-619(a)(9) allows for dismissal on basis of easily proven facts). We review appeals from dismissals pursuant to section 2-619(a)(9) on a de novo basis. See Van Meter, 207 Ill. 2d at 368; Griffith v. Wilmette Harbor Ass'n, Inc., 378 Ill. App. 3d 173, 180 (2007).\r\n\r\n¶ 20\r\nUnder the circumstances of the instant cause, we find, contrary to plaintiff's s insistence, that the issue of whether the State's s Attorney's s office is liable to him for the violations of FOIA he alleges in his complaint comprises an easily proven factual and legal issue proper for resolution by a section 2-619(a)(9) motion without further hearing.\r\n\r\n¶ 21\r\nWe begin with applicable general legal principles. Under FOIA, our citizens are entitled to full and complete information regarding governmental affairs consistent with the terms of the Act, and this includes the government's s obligation to provide public records upon appropriate request as expediently and efficiently as possible in compliance with that Act. See 5 ILCS 140/1 (West 2018); Walker v. Bruscato, 2019 IL App (2d) 170775,\r\n\r\n¶ 35\r\n. 9 No. 1-20-0424 Accordingly, when a public body, such as the State's s Attorney's s office here, receives a proper request for information under FOIA, it must comply with that request, unless one of the statutory exemptions set forth in section 7 of the Act applies. See In re Appointment of Special Prosecutor, 2019 IL 122949,\r\n\r\n¶ 25\r\n; accord Illinois Educational Ass's n v. Illinois State Bd. of Education, 204 Ill. 2d 456, 463 (2003); 5 ILCS 140/3(a) (West 2018). The burden of proving that the documents sought under FOIA falls within one of its statutory exemptions lies with the public body. See 5 ILCS 140/1.2 (West 2018); Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 408 (1997).\r\n\r\n¶ 22\r\nFirst and foremost, we find that this appeal is moot. An appeal is moot when the issues have ceased to exist and there is no longer any actual controversy between the parties. See Duncan Publishing, Inc. v. City of Chicago, 304 Ill. App. 3d 778, 782 (1999); accord Engle v. Foley and Lardner, LLP, 393 Ill. App. 3d 838, 847-48 (2009). Such is the case when a plaintiff has received that which he sought. See Engle, 393 Ill. App. 3d at 848. This is particularly true with respect to FOIA claims: the mootness doctrine applies once the requested records under FOIA have been produced. See Turner v. Joliet Police Department, 2019 IL App (3d) 170819,\r\n\r\n¶ 12\r\n; Duncan, 304 Ill App. 3d at 782.\r\n\r\n¶ 23\r\nIn the instant cause, plaintiff has received the records he sought. As the trial court's s March 7, 2019 order confirms, the State's s Attorney's s office produced the records four months after plaintiff requested them, subject only to appropriate redaction under FOIA. Plaintiff never disputed, in the entire procedural posture of this cause, that he had received them. He does not do so now, either. As plaintiff admittedly received the records he sought, 10 No. 1-20-0424 any controversy between the parties under FOIA has ceased to exist. See Turner, 2019 IL App (3d) 170819, ¶\r\n\r\n¶ 12\r\n-13 (where the plaintiff received the information he requested under FOIA, no controversy remains and a trial court may properly dismiss his cause of action under section 2-619(a)(9) of the Code); Duncan, 304 Ill. App. 3d at782 (“Once an agency produces all the records related to a plaintiff's s [FOIA] request, the merits of a plaintiff's s claim for relief, in the form of production of information, becomes moot”); accord Walker, 2019 IL App (2d) 170775 (where the plaintiff received the records requested under FOIA, no cause of action under FOIA remained).\r\n\r\n¶ 24\r\nApart from this, the crux of plaintiff's s claim on appeal appears to be his contention that the trial court erred in granting the State's s Attorney's s motion to dismiss because questions of fact remained, namely, his assertion that the State's s Attorney's s office ignored his requests and delayed in giving him the records he sought “intentionally and in bad faith” which mandated the trial court, without any discretion, to institute civil penalties under FOIA. As the legal basis for his claim, plaintiff cites sections 11(i) and (j) of the Act. He then presents six “occurrences” of alleged bad faith on the part of the State's s Attorney's s office and claims that the Act mandated the trial court impose a total award of $18,831.91 against it and in his favor, including $17,500 in civil penalties as well as sums for copies, postage, “materials,” and “preparation.”\r\n\r\n¶ 25\r\nSection 11(i) provides that “if a person seeking the right to inspect or receive a copy of a public record prevails in a proceeding,” a trial court “shall award such person reasonable attorney's s fees and costs.” In conjunction with this provision, section 11(j) states that “if the 11 No. 1-20-0424 court determines that a public body willfully and intentionally failed to comply with [FOIA], or otherwise acted in bad faith, the court shall also impose upon the public body a civil penalty of not less than $2,500 nor more than $5,000 for each occurrence.” Under these provisions, which both use the term “shall,” if a FOIA plaintiff prevails below in the trial court, or if that court determines that the public agency acted willfully and intentionally in bad faith to withhold records requested, the court must award the plaintiff attorney's s fees and civil penalties; FOIA clearly mandates this. See, e.g., Norman v. U.S. Bank Nat's l Ass's n, 2020 IL App (1st) 190765,\r\n\r\n¶ 30\r\n, citing Schultz v. Performance Lighting, Inc., 2013 IL 115738,\r\n\r\n¶ 16\r\n(use of word “shall” in statue generally indicates mandatory obligation); Rock River Times v. Rockford Public School District 205, 2012 IL App (2d) 110879,\r\n\r\n¶ 49\r\n. Accordingly, we understand why plaintiff cites to these sections in support of his claim on appeal. However, that is where any agreement with plaintiff ends, based on the record before us.\r\n\r\n¶ 26\r\nFirst, with respect to plaintiff's s claim under section 11(i) for attorney fees, the record is clear that, since the inception of his FOIA request in this cause, plaintiff proceeded, at all times, pro se. There is no provision in the Act that allows a trial court to order a public body to reimburse a FOIA plaintiff for the time he devoted to prosecuting a FOIA action pro se. Plaintiff fails to refer us to any such provision or to any viable caselaw in support of his request under section 11(i). The simple fact is this: as a pro se litigant, plaintiff here did not incur any attorney fees. Accordingly, since he did not incur any attorney fees, he cannot recover such fees under FOIA and section 11(i) does not offer him the relief he insists he is 12 No. 1-20-0424 due in this regard. See Brazas v. Ramsey, 291 Ill. App. 3d 104, 110 (1997) (nonlawyer pro se FOIA litigant did not incur attorney fees and therefore was not entitled to such an award under section 11(i)); accord Hamer v. Lentz, 132 Ill. 2d 49, 62-63 (1989) (this is true also for attorneys who prosecute their own FOIA actions pro se); accord Uptown People's s Law Center v. Department of Corrections, 2014 IL App (1st) 130161,\r\n\r\n¶ 25\r\n(FOIA plaintiff, a not- for-profit legal organization, did not incur attorney fees where it was represented by two of its salaried employees in FOIA proceeding, and therefore it was not entitled to an award of attorney fees).3\r\n\r\n¶ 27\r\nSimilarly, for it to have been mandatory for the trial court to award plaintiff civil penalties in response to his assertions that the State's s Attorney's s office ignored his requests and intentionally failed to comply with them, section 11(j) first requires a determination by the trial court that the State's s Attorney's s office acted willfully and intentionally, in bad faith. See Rock River Times, 2012 IL App (2d) 110879,\r\n\r\n¶ 49\r\n(penalty is mandated under section 11(j) “[o]nce the trial court finds a willful and intentional failure to comply with the FOIA, or that the party acted in bad faith”); 5 ILCS 140/11(j) (West 2018). Yet, again, in the instant cause, the trial court specified, in its March 9, 2017 order, that any demand by plaintiff for civil penalties was inappropriate precisely because, not only did the State's s Attorney's s office 3 We note that plaintiff's s claim under section 11(i) is extremely underdeveloped in his brief on appeal. That is, while he cites this statutory section and demands recovery pursuant to it, he provides no real argument in his brief. As the record demonstrates, he did argue for such recovery in more detail in his original and amended complaints, wherein he asserted he deserved $200 for his “legal” work. However, here and below, he cites no legal work that would justify such a consideration, even were we to consider it now. Ultimately, without any citation to any legal authority to the contrary, and without the existence of any statute or agreement demanding otherwise, plaintiff clearly cannot prevail on a claim of attorney fees under section 11(i) of the Act. See, e.g., Ritter v. Ritter, 381 Ill. 549, 552-53 (1943) (without an authorizing statute or agreement, a trial court cannot order one litigant to pay litigation expenses incurred by another, as in Illinois, each party is responsible for his own). 13 No. 1-20-0424 “in fact produce the documents [plaintiff sought] shortly after the inception of this case,” but also because there were “no facts suggesting a failure to [produce] in bad faith.” Clearly, then, there was no determination by the trial court that the State's s Attorney's s office here willfully and intentionally failed to comply with FOIA or otherwise acted in bad faith in response to plaintiff's s records request. The court found no violation of FOIA, let alone that any conceived violation was deliberately done by design or with a dishonest purpose by the State's s Attorney's s office here. Without such a determination, section 11(j) was not triggered and, contrary to plaintiff's s insistence, there is no applicable statutory mandate imposable upon the trial court to award him civil penalties.\r\n\r\n¶ 28\r\nAdditionally, and quite significant to the issue raised by plaintiff here, we note that our Court reviews the trial court's s credibility determinations under the manifest-weight-of-the- evidence standard. See Rock River Times, 2012 IL App (2d) 110879,\r\n\r\n¶ 48\r\n; see also Schroeder v. Winyard, 375 Ill. App. 3d 358, 364 (2007) (whether a party acted willfully is a question of fact to be determined by the trier of fact). This includes, specifically and particularly, a trial court's s factual finding of whether a defendant in a FOIA cause of action has failed to comply with the Act and/or acted in bad faith. See Rock River Times, 2012 IL App (2d) 110879,\r\n\r\n¶ 48\r\n(review of factual finding that school willfully and intentionally failed to comply with FOIA under manifest-weight-of-the-evidence standard). Therefore, while a trial court is mandated to impose civil penalties under section 11(j) of FOIA once it finds willful and intentional failure to comply or bad faith, it must first make that finding; its decision in that regard, which is fact-based, is to be reviewed in light of the manifest weight 14 No. 1-20-0424 of the evidence presented. See, e.g., Rock River Times, 2012 IL App (2d) 110879. Ultimately, a reviewing court will not overturn a trial court's s factual finding unless it is against the manifest weight of the evidence, which occurs only when the opposite conclusion is clearly apparent or when the finding is unreasonable, arbitrary, or not based on the evidence. See Best v. Best, 223 Ill. 2d 342, 350 (2006); accord Goldberg v. Astor Plaza Condominium Ass's n, 2012 IL App (1st) 110620,\r\n\r\n¶ 60\r\n.\r\n\r\n¶ 29\r\nIn the instant cause, as we have noted throughout this decision, the trial court below made a specific finding that the State's s Attorney's s office did not act in bad faith in any way in dealing with plaintiff's s FOIA request. Applying a manifest-weight-of-the-evidence standard of review to that determination, we find no reason to disturb it. In other words, the opposite conclusion, namely, that the State's s Attorney's s office acted in bad faith here, is not at all apparent from the record nor is the trial court's s finding unreasonable, arbitrary, or not based on the evidence. To the contrary, upon our review of the record, the trial court's s determination was proper. Not only did plaintiff not make any specific allegation of willful or intentional violation of FOIA by the State's s Attorney's s office, but the record shows that the State's s Attorney's s office complied with FOIA, as was required. It provided the records to plaintiff which he sought, which encompassed almost 3,000 pages, by certified mail; it did so shortly after plaintiff asked for them (approximately 4 months); and it gave copies of the records (redacted and unredacted) to the trial court for evaluation, along with a log of the redactions and exemptions it claimed and the explanations for such, for the court's s review. The trial court reviewed these and found them to be appropriate. Based on all this, we find 15 No. 1-20-0424 no evidence of willful and intentional noncompliance with plaintiff's s FOIA request on the part of the State's s Attorney's s office, and we specifically find nothing that would merit the overturning of the trial court's s determination pursuant to the manifest-weight-of-the- evidence standard that, likewise, there was none.\r\n\r\n¶ 30\r\nThe recent case of Turner v. Joliet Police Department, 2019 IL App (3d) 170819, is instructive. In Turner, the plaintiff filed a FOIA request with the police department seeking his criminal records. The department provided him with redacted portions of the records he sought, pursuant to FOIA exemptions it believed were applicable. Later, the plaintiff filed a complaint seeking civil penalties and costs. During the pendency of that litigation, the department acknowledged that it had inadvertently missed some of the plaintiff's s records requested, and it served these on him. Additionally, upon a request by the plaintiff for review of the records and redactions cited, the department provided an explanation for these to the trial court. Eventually, after review, the trial court granted the department's s motion to dismiss the plaintiff's s complaint for penalties and costs with prejudice. See Turner, 2019 IL App (3d) 170819, ¶\r\n\r\n¶ 3\r\n-5.\r\n\r\n¶ 31\r\nOn appeal, the plaintiff argued that he was entitled to civil penalties and costs under section 11(j) of FOIA because the department had acted willfully and intentionally during the treatment of his request. See Turner, 2019 IL App (3d) 170819,\r\n\r\n¶ 8\r\n. However, the reviewing court held that, not only did his complaint lack any allegation of willful and intentional violation of FOIA on the part of the department but, more critically, there simply was no evidence of willful and intentional noncompliance with his request. See Turner, 2019 16 No. 1-20-0424 IL App (3d) 170819, ¶\r\n\r\n¶ 21\r\n-22. Rather, the department had provided the unredacted documents to the trial court, which had viewed them and determined that the exemptions the department claimed were applicable. Accordingly, as there was no willful and intentional failure on the part of the department to comply with FOIA requirements, there could be imposition of any civil penalties or costs warranted by section 11(j). See Turner, 2019 IL App (3d) 170819,\r\n\r\n¶ 22\r\n.\r\n\r\n¶ 32\r\nThe instant cause is very similar to Turner and merits the same result. As we have already discussed, the evidence before the trial court did not support a conclusion that the State's s Attorney's s office, which sifted through almost 3,000 pages of documents from 5 different criminal cases requested by plaintiff here and provided him with what he requested (save applicable FOIA exemptions) within 4 months, somehow acted willfully and intentionally and failed to comply with FOIA or otherwise acted in bad faith. Without evidence to counter the trial court's s determination in this respect, let alone sufficient evidence to meet the manifest-weight-of-the-evidence standard we are required to follow here, a civil penalty under section 11(j) is not warranted to be awarded to plaintiff or imposed against the State's s Attorney's s office.\r\n\r\n¶ 33\r\nFinally, for the completeness of the record here, we take a moment to address the six “occurrences” plaintiff lists in his brief that, in his view, demonstrated bad faith on the part of the State's s Attorney's s office and merited civil penalties. We do so only briefly and for the sake of clarity, having already reached our decision, as supported by caselaw. 17 No. 1-20-0424\r\n\r\n¶ 34\r\nFirst, plaintiff insists that the State's s Attorney's s office failed to respond to his FOIA request and/or delayed in processing it. However, as the record demonstrates, the State's s Attorney's s office did respond to his request and provided him with all the records he sought except for those that were exempt from production or required redaction. Plaintiff does not dispute this and does not show that the State's s Attorney's s office improperly withheld any records. Second, plaintiff insists that the State's s Attorney's s office utilized “known impermissible non-exemptions” to “prey on the weaknesses of prison inmates” like himself. However, he does not point to what these “impermissible non-exemptions” are. Conversely, the record shows that the trial court below examined the State's s Attorney's s office's s log of redactions and claimed exemptions and was provided, as well, with the full records, and found no improprieties. Similarly, plaintiff insists as another “occurrence” that the State's s Attorney's s office intentionally and knowingly refused to disclose all records contained in his criminal files, but again fails to mention what exactly any of these might be, other than (as we gather) some he presumes must exist.\r\n\r\n¶ 35\r\nNext, he cites the existence of a conversion claim that should be resolved in his favor because, as he insists, the State's s Attorney's s office did not provide him with grand jury transcripts or witness medical records from his criminal cases, which are his “property.” However, grand jury materials are exempt under FOIA (see Walker, 2019 IL App (2d) 170775,\r\n\r\n¶ 21\r\n), as are medical records from witnesses at trial, which constitute “private information” (see 5 ILCS 140/7(1)(b), (e-9) (West 2018) (this information is categorically exempt from disclosure)). Likewise, there is no merit to his last two cited “occurrences,” one 18 No. 1-20-0424 in which he claims the State's s Attorney's s office owes him compensation for placing him “in a position of danger” by “making him vulnerable” to “relentless targeting” in the form of “emotional distress, chronic depression, anxiety, PTSD, sleep deprivation, headaches, etc.,” and the other in which he insists the State's s Attorney's s office made misrepresentations in its motion to dismiss before the trial court that such costs were not recoverable. Plaintiff presents absolutely no caselaw, and we have found none, that would award him for the mental distress he claims. Rather, and as we have discussed at length, statutorily, plaintiff is only potentially entitled under FOIA to attorney fees (section 11(i)) and civil penalties (section 11(j)). This is what the State's s Attorney's s office argued below, and we fail to see how this can be classified as a misrepresentation or how plaintiff, in light of the clear statutory language of FOIA, would be entitled to such other “costs” not contemplated by the statute. Ultimately, none of the six “occurrences” plaintiff cites in his brief merits the reversal of the trial court's s dismissal order herein nor the award of penalties against the State's s Attorney's s office he now seeks.\r\n\r\n¶ 36\r\nCONCLUSION\r\n\r\n¶ 37\r\nAccordingly, for all the foregoing reasons, we affirm the judgment of the trial court.\r\n\r\n¶ 38\r\nAffirmed. 19"} {"dedup_key":"2021 IL App (1st) 200429","dedup_key_type":"neutral_citation","neutral_citation":"2021 IL App (1st) 200429","case_name":"Greer v. Board of Education of the City of Chicago","court_level":"Appellate","appellate_district":"1st","year":2021,"county":"Cook","appellate_docket":"1-20-0429","circuit_docket":"19-M1-100657","published":1,"authoring_justice":"Walker","statute":["FOIA"],"exemptions_cited":[],"public_body":"Board of Education of the City of Chicago","requesting_party":"Tyrone Greer","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the denial of a default judgment against the Board but reversed the grant of summary judgment, finding that the Board's affidavit failed to establish that the plaintiff's FOIA request for documents regarding racial discrimination claims imposed an undue burden. The case was remanded for further proceedings to allow the Board to properly identify documents and raise specific exemptions.","best_text_source":"Court Opinions - FOIA/Greer v. Board of Education of the City of Chicago, 2021 IL App (1st) 200429.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:33.476016","site_category":"Fees & Burdensome Requests","date_decided":"2021-03-31","site_url":"/cases/2021%20IL%20App%20(1st)%20200429/","text_url":"/case-text/2021%20IL%20App%20(1st)%20200429.txt","full_text":" Digitally signed by\n Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2022.07.13\n 13:30:46 -05'00'\n\n\n\n\n Greer v. Board of Education of the City of Chicago, 2021 IL App (1st) 200429\n\n\n\nAppellate Court TYRONE GREER, Plaintiff-Appellant, v. THE BOARD OF\nCaption EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellee.\n\n\n\nDistrict & No. First District, First Division\n No. 1-20-0429\n\n\n\nFiled March 31, 2021\n\n\n\nDecision Under Appeal from the Circuit Court of Cook County, No. 19-M1-100657;\nReview the Hon. Anna Demacopoulos, Judge, presiding.\n\n\n\nJudgment Affirmed in part and reversed in part; cause remanded.\n\n\nCounsel on Tyrone J. Greer, of Chicago, appellant pro se.\nAppeal\n Joseph T. Moriarty and Thomas A. Doyle, of Board of Education of\n the City of Chicago, of Chicago, for appellee.\n\n\n\nPanel JUSTICE WALKER delivered the judgment of the court, with\n opinion.\n Justice Hyman and Justice Pierce concurred in the judgment and\n opinion.\n\f OPINION\n\n¶1 Tyrone Greer filed a complaint under the Freedom of Information Act (FOIA) (5 ILCS\n 140/1 et seq. (West 2018)) against the Board of Education of the City of Chicago (Board),\n seeking documents related to racial discrimination claims he made between 1999 and 2005.\n The circuit court granted summary judgment in favor of the Board. Greer argues on appeal that\n the circuit court should have entered a default judgment against the Board, and the court erred\n by granting the Board’s motion for summary judgment. We find that the court did not abuse\n its discretion when it denied Greer’s motion for a default judgment, but the evidence leaves\n unresolved issues of material fact as to whether Greer’s request is unduly burdensome.\n Accordingly, we affirm the circuit court’s ruling against Greer’s motion for default judgment,\n reverse the circuit court’s ruling in favor of the Board’s motion for summary judgment, and\n remand for further proceedings on the complaint.\n\n¶2 I. BACKGROUND\n¶3 On October 12, 2018, Greer sent to the Board a request for (1) all documents covering the\n years 1999 through 2005 from the Equal Employment Opportunity Commission (EEOC)\n “dealing with any complaint by Tyrone J. Greer for racial discrimination”; (2) any information\n for the same years “sent to and received from the EEOC, any judge, internal administrative\n department, and individuals with administrative powers concerning Tyrone J. Greer dealing\n with any charge of racial discrimination”; and (3) “[a]ny decision, censorship, conclusion, and\n warning that came from the EEOC, any administrative judge, and a legitimate court system\n concerning any and all complaints dealing with Tyrone J. Greer and the Chicago Public\n School/Chicago Board of Education.”\n¶4 Ana Diaz, the FOIA officer for the Chicago Public Schools (CPS), responded on October\n 30, 2018, identifying four case numbers for “potentially responsive cases.” Diaz stated that\n CPS had two Bankers Boxes of documents for the first case, three Bankers Boxes for the\n second case, two Bankers Boxes for the third case, and one Bankers Box for the fourth case.\n She estimated that each box could hold up to 3500 sheets of paper, so the eight boxes could\n hold up to 28,000 pages. She claimed that CPS would need to review each page “to identify\n responsive records and then further review to redact information subject to FOIA exemptions\n including Attorney-Client Communications.” Diaz asked Greer to narrow his request. Greer\n repeated his request. In a letter dated November 16, 2018, the Board denied Greer’s request as\n unduly burdensome.\n¶5 Greer, pro se, filed an FOIA complaint against the Board in January 2019. Greer filed a\n motion for a default judgment in April 2019 because the Board had not filed an answer to his\n complaint. The court denied Greer’s repeated requests for a default judgment. The Board\n moved for summary judgment, and in support of the motion, Diaz filed a statement pursuant\n to section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109 (West 2018)). Diaz again\n stated that the CPS would need to review and redact up to 28,000 sheets of paper. She estimated\n that employees could review three pages every five minutes, and at that rate, the process would\n take 86 business days. Hence, the circuit court granted the motion for summary judgment.\n Greer now appeals.\n\n\n\n -2-\n\f¶6 II. ANALYSIS\n¶7 On appeal, Greer argues that the circuit court should have granted his motion for a default\n judgment and should not have entered summary judgment in favor of the Board.\n¶8 “Entry of a default is a drastic remedy that should be used only as a last resort because the\n law prefers that controversies be determined according to the substantive rights of the parties.”\n Walker v. Monreal, 2017 IL App (3d) 150055, ¶ 28. “The overriding consideration in deciding\n whether to enter or vacate a default judgment is the achievement of substantial justice.” H.D.,\n Ltd. v. Department of Revenue, 297 Ill. App. 3d 26, 32 (1998). We will not reverse the circuit\n court’s decision to deny a motion for default unless the circuit court abused its discretion.\n Walker, 2017 IL App (3d) 150055, ¶ 28.\n¶9 The Board responded to the complaint, and the Board’s conduct did not hamper the\n litigation. See Sander v. Dow Chemical Co., 166 Ill. 2d 48, 68-69 (1995). Hence, the circuit\n court did not abuse its discretion by denying the motion for default. See H.D., 297 Ill. App. 3d\n at 32-33.\n¶ 10 The circuit court entered judgment in favor of the Board on grounds that Greer filed an\n unduly burdensome request. A trial court should grant summary judgment only if “the\n pleadings, depositions, and admission on file, together with the affidavits, if any, show that\n there is no genuine issue as to any material fact and that the moving party is entitled to a\n judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2018).\n “In determining whether a genuine issue of material fact exists, the pleadings,\n depositions, admissions and affidavits must be construed strictly against the movant\n and liberally in favor of the opponent. *** Summary judgment is a drastic means of\n disposing of litigation, and therefore, should be granted only when the right of the\n moving party is clear and free from doubt.” Adames v. Sheahan, 233 Ill. 2d 276, 295-\n 96 (2009).\n¶ 11 The FOIA establishes that “[a]ll records in the custody or possession of a public body are\n presumed to be open to inspection or copying.” 5 ILCS 140/1.2 (West 2018). Any public body\n asserting that an exemption covers a requested disclosure “has the burden of proving by clear\n and convincing evidence that it is exempt.” 5 ILCS 140/1.2 (West 2018). “[T]he exemptions\n are to be read narrowly.” National Ass’n of Criminal Defense Lawyers v. Chicago Police\n Department, 399 Ill. App. 3d 1, 11 (2010). “[A] public body must supply a detailed justification\n for claiming a [FOIA] exemption in order to allow adequate adversarial testing ***.” Shehadeh\n v. Madigan, 2013 IL App (4th) 120742, ¶ 34.\n¶ 12 When a government agency claims the FOIA request is “unduly burdensome,” the agency\n implies that it will face a great burden identifying responsive documents. See Sargent Shriver\n National Center on Poverty Law, Inc. v. Board of Education of the City of Chicago, 2018 IL\n App (1st) 171846, ¶ 31; Shehadeh, 2013 IL App (4th) 120742, ¶ 34; Nation Magazine,\n Washington Bureau v. United States Customs Service, 71 F.3d 885, 891-92 (D.C. Cir. 1995).\n This case involves no such difficulty. The Board identified the four cases in which Greer raised\n racial discrimination claims. Diaz found the boxes that held the files for the cases. All the\n documents in the eight boxes apparently fit within the scope of the request. Diaz claimed that\n the work of redacting exempt information from the documents would take 86 days, but her\n assertion that employees could review only three pages every five minutes is unrealistic. The\n attorney-client privilege would presumably exempt from disclosure all correspondence\n between the Board’s attorneys and the Board or CPS. See Illinois Education Ass’n v. Illinois\n\n -3-\n\f State Board of Education, 204 Ill. 2d 456, 470-71 (2003). A glance at the head of each\n document should quickly determine whether the exemption applied. Diaz does not clarify why\n other documents would include any private information exempt from disclosure.\n¶ 13 In determining whether the FOIA request places an undue burden on a public body, the\n court must decide whether “the burden on the public body outweighs the public interest in the\n information.” Hites v. Waubonsee Community College, 2018 IL App (2d) 170617, ¶ 55. The\n Board contends it has no duty to disclose the requested documents because the public has no\n interest in Greer’s claims of racial discrimination. We disagree. “[R]acial discrimination [is] a\n matter inherently of public concern.” Connick v. Myers, 461 U.S. 138, 148 n.8 (1983). The\n public has a substantial interest in allegations of racial discrimination by public bodies and the\n Board’s response to the allegations, even when the allegations pertain to a single employee.\n See Eberg v. United States Department of Defense, 193 F. Supp. 3d 95, 117 (D. Conn. 2016)\n (public had significant interest in allegations that a named individual public employee engaged\n in sexual harassment). We find that Diaz’s affidavit, standing alone, does not resolve all issues\n of material fact and leaves room to doubt the Board’s right to a judgment. See Adames, 233\n Ill. 2d at 296.\n¶ 14 Burdensome is not grounds for summary judgment. See National Ass’n of Criminal\n Defense Lawyers, 399 Ill. App. 3d at 17 (reversing a grant of summary judgment and finding\n several weeks of full-time work by CPD personnel who need to possess a high level of\n knowledge and sophistication was not sufficiently burdensome to outweigh the public interest\n in the plaintiff’s study of wrongful convictions based on mistaken eyewitness identification).\n On remand, the Board may examine the boxes to identify those documents for which it will\n raise exemption or privilege.\n\n¶ 15 III. CONCLUSION\n¶ 16 The circuit court did not abuse its discretion when it denied Greer’s motion for a default\n judgment against the Board. The affidavit the Board presented in support of its motion for\n summary judgment did not resolve all issues of material fact as to whether Greer’s narrow\n request for documents pertaining to a single employee’s claims of racial discrimination for a\n limited period imposed an undue burden on the Board. Accordingly, we affirm the circuit\n court’s ruling on the motion for a default judgment, reverse the circuit court’s ruling on the\n motion for summary judgment, and remand for further proceedings on the complaint.\n\n¶ 17 Affirmed in part and reversed in part; cause remanded.\n\n\n\n\n -4-\n\f"} {"dedup_key":"2021 IL App (1st) 200574","dedup_key_type":"neutral_citation","neutral_citation":"2021 IL App (1st) 200574","case_name":"Green v. Chicago Police Department","court_level":"Appellate","appellate_district":"1st","year":2021,"county":"Cook","appellate_docket":"1-20-0574","circuit_docket":"15-CH-17646","published":1,"authoring_justice":"Cunningham","statute":["FOIA"],"exemptions_cited":[],"public_body":"Chicago Police Department","requesting_party":"Charles Green","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The court addressed whether the Chicago Police Department was required to produce closed complaint register files under FOIA. The appellate court reversed the circuit court's judgment, ruling against the disclosure of the requested records.","best_text_source":"Court Opinions - FOIA/Green v. Chicago Police Department, 2021 IL App (1st) 200574.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:33.952107","site_category":"Police & Investigative Records","date_decided":"2021-03-31","site_url":"/cases/2021%20IL%20App%20(1st)%20200574/","text_url":"/case-text/2021%20IL%20App%20(1st)%20200574.txt","full_text":" Digitally signed\n by Reporter of\n Decisions\n Reason: I attest\n Illinois Official Reports to the accuracy\n and integrity of\n this document\n Appellate Court Date: 2022.01.12\n 09:47:11 -06'00'\n\n\n\n Green v. Chicago Police Department, 2021 IL App (1st) 200574\n\n\n\nAppellate Court CHARLES GREEN, Plaintiff-Appellee, v. THE CHICAGO POLICE\nCaption DEPARTMENT, Defendant-Appellant.\n\n\n\nDistrict & No. First District, Fifth Division\n No. 1-20-0574\n\n\n\nFiled March 31, 2021\n\n\n\nDecision Under Appeal from the Circuit Court of Cook County, No. 15-CH-17646; the\nReview Hon. Alison C. Conlon, Judge, presiding.\n\n\n\nJudgment Reversed.\n\n\nCounsel on Mark A. Flessner, Corporation Counsel, of Chicago (Benna Ruth\nAppeal Solomon, Myriam Zreczny Kasper, and Elizabeth Mary Tisher,\n Assistant Corporation Counsel, of counsel), for appellant.\n\n Jaime Orloff Feeney, of Ropes & Gray LLP, and Jared Kosoglad, of\n Jared S. Kosoglad, P.C., both of Chicago, for appellee.\n\n\n\nPanel JUSTICE CUNNINGHAM delivered the judgment of the court, with\n opinion.\n Justice Hoffman concurred in the judgment and opinion.\n Presiding Justice Delort dissented, with opinion.\n\f OPINION\n\n¶1 This case arises out of plaintiff-appellee Charles Green’s 2015 request, pursuant to the\n Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2014)), to the Chicago Police\n Department (CPD) for all closed complaint register files (CR files) concerning all Chicago\n police officers. When the CPD failed to respond to his request, Mr. Green filed suit in the\n circuit court of Cook County, seeking, inter alia, an order directing the CPD to produce the\n requested files. While Mr. Green’s lawsuit was pending in the circuit court of Cook County,\n an injunction was also in place in that court, prohibiting the CPD from releasing any CR files\n over four years old from the date of any FOIA request. The trial court continued Mr. Green’s\n lawsuit while the injunction that prohibited the release of any files over four years old was\n being litigated. This court ultimately vacated the injunction in 2016.\n¶2 In 2018, following the vacatur of the injunction, Mr. Green and CPD filed cross motions\n for summary judgment in the circuit court of Cook County related to Mr. Green’s pending\n complaint seeking to obtain the CR files after the CPD ignored his initial FOIA request. On\n January 10, 2020, the trial court granted Mr. Green’s motion for summary judgment, denied\n the CPD’s motion, and ordered the CPD to turn over all CR files dated 1967-2011. (The court\n had previously ordered the CPD to turn over the CR files dated 2011-15.)\n¶3 On appeal, the CPD argues that (1) the trial court lacked jurisdiction to order it to produce\n files that were subject to an injunction at the time that they were requested and (2) the court\n erred in rejecting its belated claim that producing 48 years of closed CR files would be unduly\n burdensome. For the following reasons, we reverse the judgment of the circuit court of Cook\n County.\n\n¶4 BACKGROUND\n¶5 In 1986, Mr. Green was convicted of four counts of murder, aggravated arson, residential\n burglary, home invasion, armed robbery, and armed violence, arising out of a quadruple\n homicide. Mr. Green, who was 16 years old at the time of the crimes, was sentenced to life\n imprisonment. Following Mr. Green’s conviction, the lead detective who had investigated the\n homicide was found to have coerced inculpatory statements from arrestees and abused those\n in custody on several occasions. There was no specific finding related to this detective\n regarding Mr. Green. Mr. Green was released from custody in 2009 after numerous appeals,\n but his conviction stands.\n¶6 On November 18, 2015, Mr. Green, through counsel, sent a FOIA request to the CPD,\n seeking “any and all closed complaint register files that relate to Chicago Police Officers.”\n When the CPD did not respond to this request, Mr. Green filed suit in the circuit court of Cook\n County on December 4, 2015. In his complaint, Mr. Green alleged that the CPD violated FOIA\n by failing to produce the requested documents or otherwise respond to his request. He sought,\n inter alia, an order requiring the CPD to produce the requested records with any exempted\n material redacted.\n¶7 The CPD answered Mr. Green’s complaint and admitted that it had not responded to Mr.\n Green’s initial FOIA request. The CPD also asserted two affirmative defenses, arguing (1) that\n several documents or portions of documents encompassed in Mr. Green’s request were exempt\n from production because they contained private or personal information and (2) that it was\n\n\n -2-\n\f barred from producing CR files over four years old pursuant to an injunctive order in an\n unrelated case that was in place at the time of Mr. Green’s FOIA request.\n¶8 The injunctive order to which the CPD referred in its answer to Mr. Green’s lawsuit arose\n out of litigation between the Fraternal Order of Police (FOP), the City of Chicago (City), and\n the CPD. That litigation was prompted by an August 2014 FOIA request to the CPD by the\n Chicago Tribune (Tribune) and the Chicago Sun-Times (Sun-Times). The Tribune and the\n Sun-Times requested a list of names of police officers who had received at least one complaint\n dating back to 1967, along with the CR number of the complaint. The City informed the FOP\n that it intended to release the requested information. In response, the FOP sought to enjoin the\n City from producing CR files dating back to 1967 pursuant to any FOIA requests. The FOP\n cited a provision in the collective bargaining agreement between the City and the FOP,\n requiring the City to destroy CPD files over four years old.\n¶9 A preliminary injunction was entered in December 2014 that prohibited the release of a list\n of police officers against whom there were complaints that were over four years old as of the\n date of the Tribune and Sun-Times’s FOIA request. A second preliminary injunction was\n entered in May 2015. That injunction more broadly prohibited the City and the CPD from\n releasing any CR files more than four years old as of the date of any FOIA request. The issue\n of whether the City had violated the collective bargaining agreement by not destroying CPD\n CR files that were more than four years old was brought to arbitration while the injunction was\n still in effect. And one year later, an arbitrator ruled that the City had violated the collective\n bargaining agreement by preserving outdated CR files and disciplinary records. The arbitrator\n ordered the City to purge its records of all police misconduct investigations and discipline that\n were more than five years old.\n¶ 10 The City appealed both the December 2014 and the May 2015 preliminary injunctions.\n This court vacated both injunctions as against public policy. Fraternal Order of Police,\n Chicago Lodge No. 7 v. City of Chicago, 2016 IL App (1st) 143884, ¶¶ 35-40. Subsequently,\n this court also vacated the arbitration award that had ordered the files destroyed, finding it to\n be against public policy. City of Chicago v. Fraternal Order of Police, 2019 IL App (1st)\n 172907, ¶¶ 37-40. That decision was later affirmed by our supreme court. City of Chicago v.\n Fraternal Order of Police, Chicago Lodge No. 7, 2020 IL 124831, ¶¶ 43-44.\n¶ 11 For case management purposes and due to the pending FOP litigation, the trial court had\n consolidated Mr. Green’s instant lawsuit with the FOP case that sought to enjoin the release of\n files older than four years. That consolidation lasted until January 10, 2018, at which time the\n court set a schedule for dispositive motions in the instant case. In March 2018, the CPD moved\n for partial summary judgment, arguing that Mr. Green was only entitled to the CR files that\n were not subject to the injunction. Specifically, it argued that it should only have to produce\n CR files dated after 2011, or four years prior to Mr. Green’s 2015 request. In its motion, the\n CPD also acknowledged that when it failed to respond to the request within five business days\n pursuant to FOIA, it “waived its right to deny Plaintiff’s request on the grounds that it was\n unduly burdensome.”\n¶ 12 On July 25, 2018, the trial court denied the CPD’s motion for summary judgment, despite\n finding that the CPD did not wrongfully fail to produce the CR files dated 1967-2011 at the\n time they were requested. The trial court further ordered the parties to confer with each other\n to determine a schedule for production of the CR files dated from 2011-15, as those files were\n\n\n -3-\n\f not subject to the injunction. Then, in September 2018, the trial court ordered the CPD to\n produce the CR files dated 2011-15 by December 31, 2018.\n¶ 13 Between July 2018 and February 2019, the parties filed cross-motions for summary\n judgment. During this time, the CPD did not turn over any CR files dated 2011-15. At an April\n 5, 2019, hearing on the parties’ pending motions, including a motion by Mr. Green to compel\n the CPD to produce the files dated 2011-15, the CPD stated that it was working on creating an\n online data portal for the files dated 2011-15 but was still in the process of reviewing and\n redacting relevant files.\n¶ 14 With regard to the issue of production of the 1967-2011 files, the trial court agreed that the\n CPD could not be sanctioned for withholding the files dated 1967-2011, since, at the time they\n were requested, the CPD was prohibited from releasing them by the injunctions that were then\n in place. Nevertheless, the trial court held that once the injunctions were lifted, there was no\n reason why Mr. Green should be required to submit a new FOIA request to access the files.\n Instead, the court again ordered the parties to work together to determine a schedule for\n producing the CR files dated 1967-2011. The trial court did not rule on the parties’ cross\n motions for summary judgment at that time, stating it needed more details on the\n “practicalities,” but indicated it would probably grant both parties’ motions in part.\n¶ 15 Over the next eight months, the parties filed several motions. The CPD filed a motion to\n reconsider the trial court’s ruling of April 5, which ordered the parties to work together to\n determine a schedule for production of the files dated 1967-2011. Mr. Green moved twice to\n compel compliance with the court’s April 5, 2019, order, invoking the court’s contempt power,\n in light of the CPD’s failure to comply with the trial court’s previous December 31, 2018,\n deadline for production of the CR files dated 2011-15.\n¶ 16 The trial judge who had issued the April 5, 2019, order retired from the bench in the midst\n of the proceedings. On January 10, 2020, the trial court, with a new judge presiding, issued an\n order disposing of all pending motions in the case. In that order, the trial court held that the\n April 5 order contained sufficient findings to resolve the parties’ cross motions for summary\n judgment. To that end, the court entered summary judgment in favor of Mr. Green and against\n the CPD, describing it “as a ministerial act.” The court further denied CPD’s motion for\n reconsideration. Finally, the court granted, in part, Mr. Green’s motion to compel after finding\n that the CPD willfully and intentionally failed to comply with the court’s order to produce the\n files dated 2011-15. The trial court imposed a $4000 civil penalty against the City. The trial\n court ordered CPD to produce these files dated 1967-2011 by December 31, 2020, without\n specifying the rate at which they were to be produced. On the other hand, with respect to the\n CR files dated 2011-15, the court ordered CPD to produce them at a rate of at least 3000 files\n per month until production was complete.\n¶ 17 On March 16, 2020, the trial court granted the CPD’s motion for a finding that there was\n no just reason for delaying appeal of the January 10, 2020, order, which granted Mr. Green’s\n motion for summary judgment and denied the CPD’s motion for summary judgment. The trial\n court stayed production of the CR files dated 1967-2011 pending the outcome of this appeal.\n\n¶ 18 ANALYSIS\n¶ 19 We note that we have jurisdiction to review this matter, as the CPD filed a timely notice of\n appeal following the trial court’s finding that there was no just reason for delaying appeal of\n\n\n -4-\n\f its January 10, 2020, order. See Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016); R. 303 (eff. July 1,\n 2017).\n¶ 20 This appeal concerns only the order granting summary judgment in favor of Mr. Green and\n directing the CPD to produce the CR files dated 1967-2011. In order to prevail on a motion for\n summary judgment, the moving party must show there is no genuine issue of material fact and\n it is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018). We review\n the trial court’s grant of summary judgment de novo. Gary v. City of Calumet City, 2020 IL\n App (1st) 191812, ¶ 26.\n¶ 21 The dispositive issue on appeal in this case is whether the trial court had jurisdiction to\n order the production of the 1967-2011 records after it determined that the CPD did not\n improperly withhold those records at the time they were requested. Resolution of this issue\n turns on section 11 of FOIA, which allows any person who is denied access to public records\n by a public body to file suit for injunctive or declaratory relief. 5 ILCS 140/11(a) (West 2018).\n (Significantly, the failure to timely respond to a FOIA request is considered a denial. Id.\n § 3(d).) Section 11(d) goes on to vest the trial court with “jurisdiction to enjoin the public body\n from withholding public records and to order the production of any public records improperly\n withheld from the person seeking access.” Id. § 11(d). From this, it follows that the court may\n only order production of public records if they are “improperly withheld.” See In re\n Appointment of Special Prosecutor, 2019 IL 122949, ¶ 57.\n¶ 22 At the outset, we must determine the point in time at which a court should evaluate the\n propriety of a public body’s decision to withhold documents. The question is whether the\n decision should be evaluated at the time the FOIA request is denied or at some later stage of\n litigation, depending on the circumstances. Courts confronting this issue have overwhelmingly\n considered whether the documents requested were improperly withheld at the time the decision\n to withhold was made. For example, in Bonner v. United States Department of State, 928 F.2d\n 1148, 1149 (D.C. Cir. 1991), the plaintiff filed a FOIA request with the United States State\n Department. 1 The State Department produced a number of the requested documents in full but\n released 1033 documents with partial redactions based on FOIA exemptions. Id. To test the\n validity of the redactions, the parties agreed to a sampling procedure in which the plaintiff\n would choose 63 out of the 1033 partially redacted documents for which the State Department\n would prepare an index summarizing the withheld information in those documents and the\n reason for the withholding. Id. When the State Department provided the index to the plaintiff,\n it addressed only 44 of the 63 documents because, during the time between the plaintiff’s FOIA\n request and the preparation of the index of representative documents, 19 of the 63 documents\n were no longer classified and could be released in full. Id. The plaintiff argued, in relevant part,\n that given that approximately one-third of the sample documents were declassified, one-third\n of the partially-redacted documents that were not part of the sample must also have become\n declassified during that time period and could also be released in full. Id. at 1153. The United\n States Court of Appeals agreed but held that it would not require the State Department to\n “ ‘follow an endlessly moving target’ ” and to reprocess the 1033 partially redacted documents\n to determine which ones were no longer classified. Id. (quoting Meeropol v. Meese, 790 F.2d\n\n 1\n Because of the similarity of the Illinois FOIA and the federal FOIA, Illinois courts frequently look\n to federal case law in construing the Illinois FOIA. See In re Appointment of Special Prosecutor, 2019\n IL 122949, ¶ 55.\n\n -5-\n\f 942, 959 (D.C. Cir. 1986)). The court explained that requiring an agency to “adjust or modify\n its FOIA responses based on post-response occurrences could create an endless cycle of\n judicially mandated reprocessing.” Id. at 1152.\n¶ 23 Similarly, in Lesar v. United States Department of Justice, 636 F.2d 472, 479 (D.C. Cir.\n 1980), the defendant initially withheld certain classified documents otherwise responsive to\n the plaintiff’s FOIA request, but by the time the plaintiff appealed the lower court’s decision,\n some of those withheld documents were declassified. The United States Court of Appeals\n rejected the plaintiff’s argument that it was entitled to those subsequently declassified\n documents, holding that it would assess the agency’s decision to withhold the documents under\n the circumstances that existed at the time the decision was made. Id. at 480; see also American\n Civil Liberties Union v. National Security Agency, 925 F.3d 576, 601 (2d Cir. 2019) (rejecting\n plaintiff’s argument that it should order agency to reprocess documents based on new\n disclosures that postdated agency’s initial FOIA decision on basis that FOIA decision should\n be evaluated as of time it was made). Those cases provide clarity for our determination in the\n case before us. Specifically, the propriety of a response must be judged at the time the decision\n denying the FOIA request was made.\n¶ 24 Having determined that we should evaluate the CPD’s response to Mr. Green’s FOIA\n request at the time it was made, we next consider whether the 1967-2011 CR files were\n improperly withheld as of November 2015. In May 2015, an injunction was issued enjoining\n and ordering the CPD “in connection with any Freedom of Information Act requests, not to\n release any Complaint Register Files (CR Files) more than four years old as of the date of the\n request.” Given that the CPD implicitly denied Mr. Green’s FOIA request in November\n 2015—when it failed to respond to the request—the CPD maintains that, therefore, it did not\n improperly withhold the CR files prior to November 2011. We agree.\n¶ 25 The supreme court in In re Appointment of Special Prosecutor examined the relationship\n between a FOIA request that was at odds with a court-ordered injunction. In that case, our\n supreme court, relying on GTE Sylvania, Inc. v. Consumers Union of the United States, Inc.,\n 445 U.S. 375 (1980), held “where a circuit court with personal and subject-matter jurisdiction\n issues an injunction, the injunction must be obeyed, however erroneous it may be, until it is\n modified or set aside by the court itself or reversed by a higher court.” In re Appointment of\n Special Prosecutor, 2019 IL 122949, ¶ 64. Therefore, our supreme court concluded that “a\n lawful court order takes precedence over the disclosure requirements of FOIA.” Id. ¶ 66.\n¶ 26 In this case, it is undisputed that the trial court had personal and subject matter jurisdiction\n over the parties to the injunction. Accordingly, the CPD was required to obey the May 2015\n injunction and could not release the 1967-2011 CR files when requested by Mr. Green in\n November 2015. It is immaterial that the injunction was subsequently vacated because, as\n discussed supra ¶¶ 22-24, we evaluate the public body’s decision to withhold documents at\n the time the body responded to the request. Because the CPD did not improperly withhold the\n 1967-2011 CR files at the time of its (implicit) response, we conclude that the trial court\n improperly ordered the CPD to produce those files in 2020, pursuant to the original FOIA\n request.\n¶ 27 For his part, Mr. Green argues that the injunction was void and did not have to be obeyed.\n But this argument rests on an erroneous reading of our decision in Fraternal Order of Police,\n 2016 IL App (1st) 143884. In that case, we overturned the May 2015 injunction. We held that\n there was no legal basis to issue an injunction prohibiting the release of CR files over four\n\n -6-\n\f years old from the date of a FOIA request, as the collective bargaining agreement mandating\n such destruction of records over four years old violated FOIA and Illinois public policy. Id.\n ¶ 55. That ruling is not tantamount to a finding that the injunction was void. See In re M.W.,\n 232 Ill. 2d 408, 414-15 (2009) (void order is one entered by court lacking jurisdiction).\n Therefore, we reject Mr. Green’s argument that the injunction was void and, thus, did not\n prohibit the CPD from releasing the requested files.\n¶ 28 Because we conclude that the trial court erred in ordering the CPD to produce the 1967-\n 2011 CR files pursuant to the original request, we need not determine whether the court also\n erred in refusing to allow the CPD to belatedly raise FOIA’s undue burden exemption.\n\n¶ 29 CONCLUSION\n¶ 30 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County.\n\n¶ 31 Reversed.\n\n¶ 32 PRESIDING JUSTICE DELORT, dissenting:\n¶ 33 This case concerns what a court should do when a public body denies a FOIA request, but\n the public body is under a court order to not release the requested records. As our supreme\n court explained in In re Appointment of Special Prosecutor, 2019 IL 122949, ¶ 66, “a lawful\n court order takes precedence over the disclosure requirements of FOIA.” Thus, a public body\n may refuse disclosure of the documents when a court order bars their release. This case presents\n a question not resolved in In re Appointment of Special Prosecutor, which is whether a\n requestor has a remedy if a court is in the midst of hearing a lawsuit seeking release of public\n records and the injunction upon which the public body had relied has now been vacated. The\n majority concludes that because the public body did not “improperly withhold” the documents\n in first instance (see 5 ILCS 140/11(d) (West 2018)), the circuit court erred in requiring the\n City to release records to Green. While everyone agrees that there is no longer any court order\n in place barring disclosure of the public records Green seeks, he must now start over with a\n new FOIA request and return to the “back of the line.” This not only delays the disclosure of\n documents to Green, it allows the City to assert exemptions that it failed to raise in the first\n instance. I respectfully disagree with this result.\n¶ 34 The Illinois FOIA contains a detailed, explicit declaration of legislative intent. See id. § 1.\n This declaration explains that it is the public policy of Illinois that (1) “all persons are entitled\n to full and complete information regarding the affairs of government and the official acts and\n policies of those who represent them as public officials and public employees” and (2) “access\n by all persons to public records promotes the transparency and accountability of public bodies\n at all levels of government. It is a fundamental obligation of government to operate openly and\n provide public records as expediently and efficiently as possible in compliance with this Act.”\n Id. It further states:\n “Restraints on access to information, to the extent permitted by this Act, are limited\n exceptions to the principle that the people of this State have a right to full disclosure of\n information relating to the decisions, policies, procedures, rules, standards, and other\n aspects of government activity that affect the conduct of government and the lives of\n any or all of the people. The provisions of this Act shall be construed in accordance\n\n\n -7-\n\f with this principle. This Act shall be construed to require disclosure of requested\n information as expediently and efficiently as possible ***.” Id.\n¶ 35 When construing a statute, a court “may consider the reason for the law, the problems\n sought to be remedied, the purposes to be achieved, and the consequences of construing the\n statute one way or another.” Board of Education of the City of Chicago v. Moore, 2021 IL\n 125785, ¶ 20 (citing Chicago Teachers Union, Local No. 1 v. Board of Education of the City\n of Chicago, 2012 IL 112566, ¶ 15). As our supreme court has recently explained:\n “We note at the outset that the primary goal in construing a statute is to ascertain\n and give effect to the legislature’s intent, and the best indicator of that intent is the\n language of the statute itself. [Citation.] But a court will not read language in isolation;\n it will consider it in the context of the entire statute. [Citation.] It is also proper to\n consider not only the language of the statute but the reason for the law, the problem\n sought to be remedied, the goals to be achieved, and the consequences of construing\n the statute one way or another. [Citation.] Additionally, we must presume that the\n legislature did not intend to produce absurd, inconvenient, or unjust results.”\n Carmichael v. Laborers’ & Retirement Board Employees’ Annuity & Benefit Fund,\n 2018 IL 122793, ¶ 35.\n¶ 36 When it denied Green’s request, the City of Chicago correctly honored the injunction\n barring release of the records in question. However, by the time the circuit court heard Green’s\n lawsuit, the injunction had been vacated, and it no longer barred the City from releasing the\n records. The City admits that it failed to respond to Green’s FOIA request, and its failure to do\n so is rather inexplicable. Had the circuit court ruled in favor of the City, it would have, in\n essence, revived an injunction from another case that was no longer in force or effect. That\n result would have been directly at odds with the explicit purposes of FOIA, which favor\n “expedient[ ] and efficient[ ]” disclosure. 5 ILCS 140/1 (West 2018). It would also violate the\n principle, outlined in Carmichael, that a statute should not be construed to obtain an absurd\n result.\n¶ 37 While Illinois courts generally look to cases involving the federal Freedom of Information\n Act when construing the parallel state law (see supra ¶ 22 n.1), that rule is not inflexible.\n Unlike the Illinois FOIA, the federal FOIA does not contain a declaration of legislative\n purpose, much less one as robust as the one contained in section 1 of the Illinois FOIA.\n Compare 5 ILCS 140/1 (West 2018), with 5 U.S.C. § 552 (2018). While federal courts have\n looked to the legislative history of the federal FOIA to discern that Congress intended to\n promote disclosure by enacting the federal FOIA (see, e.g., Milner v. Department of the Navy,\n 562 U.S. 562, 565 (2011)), they were not construing a law with an expansive declaration of\n intent such as that contained in the Illinois FOIA. Therefore, I do not find authorities such as\n Bonner, American Civil Liberties Union, or Lesar to be conclusive as to the issue presented\n here. See supra ¶¶ 22-23.\n¶ 38 Construing the “improperly withheld” language in FOIA in light of its guiding principles\n promoting disclosure of public records leads me to the conclusion that Green was entitled to a\n remedy under FOIA. Therefore, I do not believe that the circuit court erred in requiring the\n City to disclose the records in question. I would affirm the judgment below and require the\n City to disclose the records which Green seeks.\n\n\n\n -8-\n\f"} {"dedup_key":"2021 IL App (2d) 190971","dedup_key_type":"neutral_citation","neutral_citation":"2021 IL App (2d) 190971","case_name":"Williams v. Bruscato","court_level":"Appellate","appellate_district":"2nd","year":2021,"county":"Capacity as Winnebago","appellate_docket":"2-19-0971","circuit_docket":"15-MR-123","published":1,"authoring_justice":"McLaren","statute":["FOIA"],"exemptions_cited":[],"public_body":"Winnebago County State’s Attorney","requesting_party":"Marvin Williams","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the denial of statutory penalties under FOIA section 11(j), finding that the defendant did not act in bad faith in responding to the plaintiff's records request. The court further held that the plaintiff forfeited arguments regarding the defendant's compliance with a prior appellate mandate by failing to raise them in the trial court.","best_text_source":"Court Opinions - FOIA/Williams v. Bruscato, 2021 IL App (2d) 190971.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:34.286907","site_category":"FOIA Response Process","date_decided":"2021-07-21","site_url":"/cases/2021%20IL%20App%20(2d)%20190971/","text_url":"/case-text/2021%20IL%20App%20(2d)%20190971.txt","full_text":" Digitally signed by\n Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2022.05.26\n 16:00:16 -05'00'\n\n\n\n Williams v. Bruscato, 2021 IL App (2d) 190971\n\n\n\nAppellate Court MARVIN WILLIAMS, Plaintiff-Appellant, v. JOSEPH\nCaption BRUSCATO, in His Official Capacity as Winnebago County State’s\n Attorney, Defendant-Appellee.\n\n\n\nDistrict & No. Second District\n No. 2-19-0971\n\n\n\nFiled July 21, 2021\n\n\n\nDecision Under Appeal from the Circuit Court of Winnebago County, No. 15-MR-\nReview 123; the Hon. Donna R. Honzel, Judge, presiding.\n\n\n\nJudgment Affirmed.\n\n\nCounsel on Robert L. Caplan, of Clarendon Hills, for appellant.\nAppeal\n Marilyn Hite-Ross, State’s Attorney, of Rockford (Charlotte A.\n LeClercq, Assistant State’s Attorney, of counsel), for appellee.\n\n\n\nPanel JUSTICE McLAREN delivered the judgment of the court, with\n opinion.\n Justices Schostok and Birkett concurred in the judgment and opinion.\n\f OPINION\n\n¶1 Plaintiff, Marvin Williams, appeals the trial court’s denial of his petition for statutory\n penalties filed against defendant, Joseph Bruscato in his official capacity as Winnebago County\n State’s Attorney, pursuant to section 11(j) of the Freedom of Information Act (FOIA) (5 ILCS\n 140/11(j) (West 2018)). Since the entry of that judgment, Marilyn Hite Ross succeeded\n Bruscato as state’s attorney. 1 For the reasons that follow, we affirm.\n\n¶2 I. BACKGROUND\n¶3 A. FOIA Request\n¶4 In November 2014, pursuant to the FOIA (5 ILCS 140/1 et seq. (West 2014)), plaintiff sent\n a letter to defendant, seeking certain documents. Plaintiff requested:\n “1. All ‘No-Bills’ and ‘True Bills’ of Indictment for May 7th and May 14th 1997,\n of the Grand Jury (CRIMINAL).\n 2. The ‘Deliberation & Vote’ for May 14th 1997, [P]eople v. Marvin Williams case\n No. 97-CF-1081, Grand Jury.\n 3. Itinerary Sheet for all ‘No-Bills’ and ‘True-Bills’ for May 7th & 14th 1997 Grand\n Jury (CRIMINAL).”\n Defendant, through Assistant State’s Attorney David Kurlinkus, responded in a letter to\n plaintiff, denying all three requests. Kurlinkus wrote that the records plaintiff sought were\n exempt from disclosure pursuant to FOIA section 7(1)(a) (id. § 7(1)(a)) and section 112-6(a)\n of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/112-6(a) (West 2014)), stating\n “that Grand Jury proceedings are secret and are only open to the ‘State’s Attorney, his reporter\n and any other persons authorized by the court or by law.’ ”\n\n¶5 B. FOIA Complaint and Litigation\n¶6 In July 2016, plaintiff filed a three-count amended complaint alleging that defendant\n violated the FOIA by denying his requests. The counts corresponded numerically to the\n requests listed in plaintiff’s letter. Plaintiff alleged that each FOIA violation was done willfully\n and intentionally or otherwise in bad faith. Plaintiff sought declaratory and injunctive relief,\n attorney fees, and penalties. After the parties filed cross-motions for summary judgment, the\n trial court granted judgment on all counts in favor of defendant and against plaintiff. Plaintiff\n appealed.\n¶7 We affirmed in part and reversed in part. Williams v. Bruscato, 2019 IL App (2d) 170779\n (Williams I). We reversed only as to the trial court’s judgment in favor of defendant regarding\n the second part of count I, alleging defendant’s denial of the “ ‘true bills,’ ” and ordered\n “defendant to provide plaintiff with the true bills of indictment for May 7 and May 14, 1997,\n with the names of witnesses redacted.” Id. ¶ 36. We affirmed all other aspects of the trial\n court’s order. Id. ¶ 49.\n\n\n 1\n Pursuant to section 2-1008(d) of the Code of Civil Procedure (735 ILCS 5/2-1008(d) (West 2016)),\n the present official should be substituted for the predecessor. Ms. Hite Ross has filed her appearance in\n this appeal.\n\n -2-\n\f¶8 On July 3, 2019, defendant delivered to plaintiff 31 bills of indictment for May 7, 1997,\n and 32 bills of indictment for May 14, 1997. In August 2019, plaintiff filed separate petitions\n for attorney fees and for statutory penalties pursuant to sections 11(i) and 11(j) of the FOIA,\n respectively (5 ILCS 140/11(i), (j) (West 2018)). In plaintiff’s petitions for attorney fees and\n statutory penalties, he alleged that defendant denied his requests for “All ‘No-Bills’ and ‘True\n Bills’ of Indictment for May 7th and May 14th 1997, of the Grand Jury (CRIMINAL).”\n Plaintiff also alleged:\n “5. The defendant denied the request claiming an exemption pursuant to 5 ILCS\n 140 7(x) claiming that it was exempt in total because it was prohibited by 725 ILCS\n 5/112-6.\n 6. The withholding of the requested True Bills of indictment from the plaintiff were\n willful and intentional failures, or otherwise in bad faith, of the defendant to comply\n with the Act.\n 7. Where the request for No Bills was exempt, the grand jury secrecy act obviously\n did not apply as to the True Bills of this instant request because the True Bills had\n already been published in open court by the defendant.\n 8. Moreover, the public body has no right to withhold a document it purports is\n exempt but must tender to the requestor what it considers to be an exempt document,\n but with redactions. See 5 ILCS 140/7(1). The defendant willfully and intentionally, or\n otherwise in bad faith, did not follow the requirements of Section 140/7(1).”\n¶9 Defendant responded to plaintiff’s complaint, and plaintiff filed a reply. On October 4,\n 2019, after hearing argument on plaintiff’s petitions, the trial court found that defendant did\n not act in bad faith, and it denied plaintiff’s petition for statutory penalties, but the court granted\n plaintiff’s petition for attorney fees. Plaintiff filed a timely notice of appeal.\n\n¶ 10 II. ANALYSIS\n¶ 11 Essentially, plaintiff argues that the trial court erred by denying his petition, because the\n court’s interpretation of section 11(j) of the FOIA and its finding that defendant did not act in\n bad faith were in error. Initially, we must address plaintiff’s interpretation of section 11(j),\n which provides for a civil penalty. This section states:\n “If the court determines that a public body willfully and intentionally failed to comply\n with this Act, or otherwise acted in bad faith, the court shall also impose upon the public\n body a civil penalty of not less than $2,500 nor more than $5,000 for each occurrence.\n In assessing the civil penalty, the court shall consider in aggravation or mitigation the\n budget of the public body and whether the public body has previously been assessed\n penalties for violations of this Act. The court may impose an additional penalty of up\n to $1,000 for each day the violation continues if:\n (1) the public body fails to comply with the court’s order after 30 days;\n (2) the court’s order is not on appeal or stayed; and\n (3) the court does not grant the public body additional time to comply with the\n court’s order to disclose public records.” (Emphasis added.) Id. § 11(j).\n¶ 12 Plaintiff interprets section 11(j) as providing a civil penalty where a court determines that\n a public body either willfully and intentionally failed to comply with the FOIA or acted in bad\n faith. In other words, plaintiff construes the terms “willfully and intentionally” and “in bad\n\n -3-\n\f faith” as separate bases for imposing a civil penalty. Defendant counters that plaintiff’s\n interpretation is erroneous because it ignores the term “or otherwise.” We agree with\n defendant.\n¶ 13 Our primary objective in statutory construction is to ascertain and give effect to the intent\n of the legislature. Board of Education of the City of Chicago v. Moore, 2021 IL 125785, ¶ 20.\n The most reliable indicator of legislative intent is the language of the statute, which must be\n given its plain and ordinary meaning. Id. A court must view and give effect to the entire\n statutory scheme. Chicago Teachers Union, Local No. 1 v. Board of Education of the City of\n Chicago, 2012 IL 112566, ¶ 15. Therefore, words and phrases must be construed in relation to\n other relevant statutory provisions and not in isolation. Id. Each word, clause, and sentence of\n a statute must be given a reasonable meaning, if possible, and should not be rendered\n superfluous. Id. The court may consider the reason for the law, the problems sought to be\n remedied, the purposes to be achieved, and the consequences of construing the statute one way\n or another. Id. We review de novo questions of statutory construction. Taylor v. Pekin\n Insurance Co., 231 Ill. 2d 390, 395 (2008).\n¶ 14 We disagree with plaintiff’s interpretation because it renders the term “or otherwise”\n superfluous. The phrase is meant as a catchall to include other actions that constitute bad faith.\n See Song fi Inc. v. Google, Inc., 108 F. Supp. 3d 876, 883 (N.D. Cal. 2015) (“when a statute\n provides a list of examples followed by a catchall term (or ‘residual clause’) like ‘otherwise\n objectionable,’ the preceding list provides a clue as to what the drafters intended the catchall\n provision to mean”). A fortiori, a “willful and intentional” failure to comply with the FOIA is\n not sanctionable unless that failure was itself in bad faith. We read the phrase “willfully and\n intentionally” together with “otherwise in bad faith,” and we hold that, where a public body\n willfully, intentionally, and in bad faith failed to comply with the FOIA, the court shall impose\n a civil penalty. See Garlick v. Bloomingdale Township, 2018 IL App (2d) 171013, ¶ 40\n (affirming the trial court’s decision to strike the plaintiff’s petition for civil penalties under\n section 11(j), “because he could not show bad faith on the township’s part”).\n¶ 15 The parties offer no definitions of the terms “willfully,” “intentionally,” or “bad faith,” and\n the FOIA does not define these terms. The Merriam-Webster Dictionary defines “willful” as\n “done deliberately: intentional.” Merriam-Webster Online Dictionary, https://merriam-\n webster.com/dictionary/willful (last visited July 1, 2021) [https://perma.cc/3M48-GTER]. It\n defines “intentional” as: “done by intention or design.” Merriam-Webster Online Dictionary,\n https://merriam-webster.com/dictionary/intentional (last visited July 1, 2021) [https://\n perma.cc/JN59-B4HK]. Finally, it defines “bad faith” as “lack of honesty in dealing with other\n people.” Merriam-Webster Online Dictionary, https://merriam-webster.com/dictionary/bad%\n 20faith (last visited July 1, 2021) [https://perma.cc/FL94-89DF]. In addition, Black’s Law\n Dictionary defines “bad faith” as follows:\n “The opposite of ‘good faith,’ generally implying or involving actual or constructive\n fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some\n duty or some contractual obligation, not prompted by an honest mistake as to one’s\n rights or duties, but by some interested or sinister motive. Term ‘bad faith’ is not simply\n bad judgment or negligence but rather it implies the conscious doing of a wrong\n because of dishonest purpose or moral obliquity; it is different from the negative idea\n of negligence in that it contemplates a state of mind affirmatively operating with furtive\n design or ill will.” Black’s Law Dictionary 139 (6th ed. 1990).\n\n -4-\n\f Accordingly, based upon the plain meaning of these terms, to warrant the imposition of a civil\n penalty under section 11(j), the public body not only must have intentionally failed to comply\n with the FOIA but must have done so deliberately, by design, and with a dishonest purpose.\n¶ 16 Here, plaintiff first requested “All ‘No-Bills’ and ‘True Bills’ of Indictment for May 7th\n and May 14th 1997, of the Grand Jury (CRIMINAL).” Defendant denied plaintiff’s request as\n exempt under section 7(1)(a) of the FOIA, which exempts “[i]nformation specifically\n prohibited from disclosure by federal and State law or rules and regulations implementing\n federal or State law” (5 ILCS 140/7(1)(a) (West 2018)). Defendant informed plaintiff that his\n first combined request was denied because it was prohibited under section 112-6 of the Code\n (725 ILCS 5/112-6 (West 2018)). The trial court dismissed plaintiff’s complaint. We affirmed\n the trial court’s judgment, except regarding defendant’s denial of the “true bills.” Williams I,\n 2019 IL App (2d) 170779, ¶ 36.\n¶ 17 Plaintiff’s petition contained nothing indicating that defendant’s denial of his request for\n “True Bills” was by design or dishonest. Plaintiff’s request for “True Bills” was combined with\n his request for “No Bills.” His request for “No-Bills” was properly denied. Plaintiff made no\n allegation in his complaint that defendant knew or had a reasonable belief that he had an\n obligation to provide plaintiff with “All ‘No-Bills’ and ‘True Bills’ of Indictment for May 7th\n and May 14th 1997, of the Grand Jury (CRIMINAL).” Plaintiff made only conclusory\n allegations, unsupported by specific facts, that defendant’s “withholding of the requested True\n Bills from [him] were willful and intentional failures, or otherwise in bad faith.” Similarly,\n plaintiff alleged, also in a conclusory manner and unsupported by specific facts, that\n defendant’s failure to tender to him the requested documents with redactions was done\n “willfully and intentionally, or otherwise in bad faith.” Plaintiff’s allegations were woefully\n insufficient to establish conduct that would require a penalty under section 11(j). Plaintiff cites\n Rock River Times v. Rockford Public School District 205, 2012 IL App (2d) 110879, to support\n his argument. However, Rock River Times illustrates how inadequate plaintiff’s claim is.\n¶ 18 In Rock River Times, 2012 IL App (2d) 110879, ¶ 1, the newspaper petitioned under the\n FOIA for a civil penalty against the school district based on the school district’s willful and\n intentional failure to comply with the FOIA. In its petition, the newspaper alleged that the\n school district acted in bad faith by attempting to hide the contents of a letter written by a\n school principal in response to a reprimand, despite the public access counselor’s (PAC’s)\n written instructions to release the document. The newspaper alleged that the school district had\n refused to comply with its request for the document by attempting to invoke a series of\n exemptions under the FOIA, even after the PAC advised the school district that its exemptions\n were baseless and directed the school district to release the document. Id. ¶ 11. Instead of\n complying with the PAC’s directive, the school district referred to the PAC’s determination as\n “erroneous” and sought to invoke a third, inapplicable exemption before it ultimately released\n the document, stating that the PAC had orally informed it that the third exemption was\n inapplicable. The newspaper argued that the trial court should grant its request for attorney\n fees and a civil penalty because it obtained access to the document only as a result of filing\n suit. The newspaper also produced an affidavit from the PAC stating it never issued an oral\n opinion on the third exemption at all. Id. ¶¶ 11-14.\n¶ 19 In assessing a civil penalty, the trial court found “most troubling” the school district’s\n position that, after its first two claimed exemptions fell through, it could continue to assert\n additional exemptions. Id. ¶ 52. The trial court concluded that the school district willfully and\n\n -5-\n\f intentionally violated the FOIA by raising a third exemption after the first two were denied and\n by looking “ ‘for a way to save face’ ” rather than simply admitting that it was wrong. Id. ¶ 54.\n The trial court stated that “[t]he school’s course of conduct, viewed in its totality, reflected a\n lack of good faith in responding to the newspaper’s request.” Id. ¶ 23. On appeal, we held that\n the trial court’s decision that the school district willfully and intentionally violated the FOIA\n was not against the manifest weight of the evidence. Id. ¶ 54.\n¶ 20 Unlike in Rock River Times, defendant did not willfully, intentionally, or otherwise in bad\n faith violate the FOIA by continuing to raise exemptions despite receiving guidance. Contrary\n to Rock River Times, defendant was not advised that the exemption he raised was baseless and\n that he needed to release the requested documents. See id. ¶ 11. Rather, the trial court upheld\n its original denial of plaintiff’s request, and, when we separated into two requests plaintiff’s\n joint request for true bills and no bills and ordered defendant to provide plaintiff with the true\n bills, defendant complied. Nothing in the record indicates that defendant intentionally failed to\n comply with the FOIA and did so deliberately, by design, and with a dishonest purpose.\n Therefore, the trial court’s finding that defendant did not act in bad faith is not against the\n manifest weight of the evidence, and its denial of a civil penalty under section 11(j) of the\n FOIA is not an abuse of discretion. See id. ¶¶ 47-48 (although the court considered only written\n evidence in making its decision, the facts were disputed, and therefore the trial court’s findings\n were reviewed under the manifest-weight-of-the-evidence standard).\n¶ 21 Finally, plaintiff argues that statutory penalties were appropriate under section 11(j)\n because defendant, upon receiving our decision in Williams I, 2019 IL App (2d) 170779,\n provided to plaintiff the bills of indictment from the court files, not from defendant’s own files,\n and defendant did not redact the witness’s names. However, plaintiff failed to raise these\n arguments in the trial court, and therefore they are forfeited. See Chicago Tribune Co. v. Cook\n County Assessor’s Office, 2018 IL App (1st) 170455, ¶ 42 (“arguments not raised in the trial\n court are [forfeited] for purposes of appeal”).\n\n¶ 22 III. CONCLUSION\n¶ 23 The judgment of the circuit court of Winnebago County is affirmed.\n\n¶ 24 Affirmed.\n\n\n\n\n -6-\n\f"} {"dedup_key":"2021 IL App (4th) 190422-U","dedup_key_type":"neutral_citation","neutral_citation":"2021 IL App (4th) 190422-U","case_name":"Shehadeh v. Raoul","court_level":"Appellate","appellate_district":"4th","year":2021,"county":"Sangamon","appellate_docket":"4-19-0422","circuit_docket":"18-MR-546","published":0,"authoring_justice":"Holder White","statute":["FOIA"],"exemptions_cited":[],"public_body":"Illinois Attorney General (Public Access Counselor)","requesting_party":"Jamal Shehadeh","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court affirmed the dismissal of the plaintiff's mandamus complaint, finding that he failed to state a claim upon which relief could be granted. The court noted that the plaintiff sought to compel the Public Access Counselor to perform statutory duties rather than challenging the underlying FOIA denials directly against the public bodies.","best_text_source":"Court Opinions - FOIA/cleaned_text_files/4190422_R23.txt","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:35.505103","site_category":"FOIA Response Process","date_decided":"2021-05-28","site_url":"/cases/2021%20IL%20App%20(4th)%20190422-U/","text_url":"/case-text/2021%20IL%20App%20(4th)%20190422-U.txt","full_text":"2021 IL App (4th) 190422-U\r\nNOTICE FILED\r\nThis Order was filed under\r\nMay 28, 2021\r\nNO. 4-19-0422\r\nSupreme Court Rule 23 and is\r\nCarla Bender\r\nnot precedent except in the 4th District Appellate\r\nIN THE APPELLATE COURT\r\nlimited circumstances allowed Court, IL\r\nunder Rule 23(e)(1).\r\nOF ILLINOIS\r\nFOURTH DISTRICT\r\nJAMAL SHEHADEH, ) Appeal from\r\nPlaintiff-Appellant, ) Circuit Court of\r\nv. ) Sangamon County\r\nKWAME RAOUL, in His Official Capacity as Attorney ) No. 18MR546\r\nGeneral of the State of Illinois, )\r\nDefendant-Appellant. ) Honorable\r\n) Esteban F. Sanchez,\r\n) Judge Presiding.\r\nJUSTICE HOLDER WHITE delivered the judgment of the court.\r\nJustices Harris and Steigmann concurred in the judgment.\r\nORDER\r\n\r\n¶ 1\r\nHeld: The appellate court affirmed, concluding the circuit court's s dismissal of plaintiff's s mandamus complaint was proper where plaintiff failed to state a claim upon which relief could be granted.\r\n\r\n¶ 2\r\nPlaintiff, Jamal Shehadeh, filed a pro se complaint for a writ of mandamus against defendant, the Illinois Attorney General, now Kwame Raoul (Attorney General), in his official capacity. The Attorney General filed a motion to dismiss plaintiff's s complaint, which the circuit court granted. Plaintiff appeals. We affirm.\r\n\r\n¶ 3\r\nI. BACKGROUND\r\n\r\n¶ 4\r\nBetween October 2017 and May 2018, plaintiff filed seven requests to three public bodies under the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2016)). In two of his requests, plaintiff sought documents from the Kankakee County Sheriff's s Office regarding communications between its employees and a law firm. The Kankakee County sheriff denied the requests, asserting the documents were exempt from disclosure under sections 7(1)(a) and 7(1)(m) of the FOIA (id. § 7(1)(a), (m)). Following the denials, plaintiff submitted requests for review to the Public Access Counselor (PAC). In both cases, based on the materials submitted, the PAC determined “no further inquiry [was] warranted.”\r\n\r\n¶ 5\r\nIn another request to the Kankakee County Sheriff's s Office, plaintiff sought “records concerning the vendor or vendors that supply and service inmate kiosks.” In its response, the Kankakee County Sheriff's s Office responded that some documents responsive to the request were exempt from disclosure pursuant to sections 7(1)(b) and 7(1)(e) of the FOIA (id. § 7(1)(b), (e)). Plaintiff again submitted a request for review to the PAC. In his request, plaintiff alleged the Kankakee County sheriff's s response violated the FOIA. Upon its review of the materials submitted by plaintiff, the PAC determined “no further inquiry [was] warranted.”\r\n\r\n¶ 6\r\nIn April 2018, plaintiff submitted two additional FOIA requests to the Logan County Sheriff's s Office and one to the Lincoln Police Department. In his requests, plaintiff sought records concerning calls for assistance in 2016 between a hospital and a residential address. The Logan County Sheriff's s Office denied plaintiff's s requests, asserting any existing records responsive to the requests would be exempt from disclosure under section 7(1)(e-10) of the FOIA (Pub. Act 100-26 (eff. Aug. 4, 2017) (amending 5 ILCS 140/7(1)(e-10)). Similarly, the Lincoln Police Department denied plaintiff's s request, asserting the records he requested were exempt from disclosure under section 7(1)(e-8) of the FOIA (id. (amending 5 ILCS 140/7(1)(e- 8)). Plaintiff submitted requests for review to the PAC. Once again, after review of plaintiff's s submitted materials, the PAC determined no further inquiry was warranted as to any of plaintiff's s requests.\r\n\r\n¶ 7\r\nPlaintiff submitted another FOIA request to the Lincoln Police Department in May 2018, seeking “records concerning death investigations.” The Lincoln Police Department denied plaintiff's s requests, concluding the documents were exempt from disclosure under section 7(1)(e-10) of the FOIA (id. (amending 5 ILCS 140/7(1)(e-10)). Plaintiff submitted a request for review to the PAC. After review of the materials submitted by plaintiff, the PAC determined no further inquiry was warranted.\r\n\r\n¶ 8\r\nIn July 2018, plaintiff pro se filed a complaint for mandamus relief against the Attorney General, alleging the PAC refused to perform “a clear ministerial duty” under the FOIA when it denied his request for review “without obtaining the records at issue or conducting an inquiry” as required by section 9.5 of the FOIA (id. § 9.5).\r\n\r\n¶ 9\r\nIn October 2018, the Attorney General filed a combined motion to dismiss plaintiff's s complaint for mandamus relief under section 2-619.1 of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-619.1 (West 2016)). Specifically, the Attorney General argued plaintiff's s complaint should be dismissed under section 2-615 of the Procedure Code (id. § 2-615)) because he failed to state a claim for mandamus relief and did not follow proper statutory procedures in challenging the denial of his FOIA requests. The Attorney General additionally argued plaintiff's s complaint should be dismissed under section 2-619 of the Procedure Code (id. § 2-619) because the circuit court lacked jurisdiction to review the Attorney General's s decisions under sections 9.5 and 11.5 of the FOIA (5 ILCS 140/9.5, 11.5 (West 2016)) where it never issued any binding opinions in response to plaintiff's s requests for review.\r\n\r\n¶ 10\r\nIn June 2019, the Sangamon County circuit court entered a written order granting the Attorney General's s combined motion to dismiss. Citing sections 9.5(a) and (c) and 11.5 of the FOIA (id. §§ 9.5(a), (c), 11.5), the court concluded it lacked jurisdiction to review plaintiff's s complaint for mandamus relief because the Attorney General never issued any binding opinions in response to any of plaintiff's s requests for review and therefore granted the motion to dismiss under section 2-619 of the Procedure Code (735 ILCS 5/2-619 (West 2016)). After determining plaintiff failed to state a claim for mandamus relief because he did not demonstrate he had a clear right to the relief he requested, the court also granted the Attorney General's s motion under section 2-615 of the Procedure Code (id. § 2-615).\r\n\r\n¶ 11\r\nThis appeal followed.\r\n\r\n¶ 12\r\nII. ANALYSIS\r\n\r\n¶ 13\r\nOn appeal, plaintiff argues the trial court erred when it granted the Attorney General's s motion to dismiss because his complaint sufficiently stated a claim for mandamus relief. The Attorney General responds dismissal was proper because the court lacked jurisdiction to review plaintiff's s claim, and plaintiff failed to state a claim where the relief he sought involved the exercise of discretion. We conclude dismissal of plaintiff's s mandamus complaint was proper.\r\n\r\n¶ 14\r\nA. Mandamus Relief and Motions to Dismiss\r\n\r\n¶ 15\r\n“Mandamus relief is an extraordinary remedy to enforce, as a matter of right, the performance of official duties by a public official where the official is not exercising discretion.” Hatch v. Szymanski, 325 Ill. App. 3d 736, 739, 759 N.E.2d 585, 588 (2001). To establish a claim for mandamus relief, the petitioner must show “ ‘a clear, affirmative right to relief, a clear duty of the public official to act, and a clear authority in the public official to comply with the writ.’ ” Hadley v. Montes, 379 Ill. App. 3d 405, 407, 883 N.E.2d 703, 705-06 (2008) (quoting People ex rel. Ryan v. Roe, 201 Ill. 2d 552, 555, 778 N.E.2d 701, 703 (2002)).\r\n\r\n¶ 16\r\nThe trial court granted the Attorney General's s section 2-619.1 motion to dismiss plaintiff's s complaint for mandamus relief, finding dismissal was warranted under both sections 2-615 and 2-619 of the Procedure Code. 735 ILCS 5/2-615, 2-619 (West 2016). “A section 2-615 motion admits all well-pleaded facts and attacks the legal sufficiency of the complaint; a section 2-619 motion admits the legal sufficiency of the complaint, but raises defects, defenses, or other affirmative matter, appearing on the face of the complaint or established by external submissions, that defeat the action. [Citation.] Section 2-619.1 of the Code allows a litigant to combine a section 2-615 motion to dismiss and a section 2-619 motion to dismiss in one pleading.” Northern Trust Co. v. County of Lake, 353 Ill. App. 3d 268, 278, 818 N.E.2d 389, 398 (2004). We review the court's s dismissal de novo. Reynolds v. Jimmy John's s Enterprises, LLC, 2013 IL App (4th) 120139, ¶\r\n\r\n¶ 25\r\n, 31, 988 N.E.2d 984.\r\n\r\n¶ 17\r\nB. FOIA Review\r\n\r\n¶ 18\r\nA person whose FOIA request is denied may file a request for review with the Attorney General's s PAC. 5 ILCS 140/9.5(c) (West 2016). “Upon receipt of a request for review, the [PAC] shall determine whether further action is warranted. If the [PAC] determines that the alleged violation is unfounded, he or she shall so advise the requester and the public body and no further action shall be undertaken. In all other cases, the [PAC] shall forward a copy of the request for review to the public body within 7 business days after receipt and shall specify the records or other documents that the public body shall furnish to facilitate the review.” Id.\r\n\r\n¶ 19\r\nIn Garlick v. Office of the Public Access Counselor, 2013 IL App (1st) 122444, ¶\r\n\r\n¶ 10\r\n-11, 4 N.E.3d 503, the First District summarized this procedure as follows: “Under section 9.5 of the FOIA, when a public body denies a request for a copy of a public document, the requester may ask the PAC to review the public body's s decision. The FOIA provides: ‘Unless the [PAC] * * * decides to address the matter without the issuance of a binding opinion, the Attorney General shall examine the issues and the records, shall make findings of fact and conclusions of law, and shall issue to the requester and the public body an opinion in response to the request for review within 60 days after its receipt. The opinion shall be binding upon both the requester and the public body, subject to administrative review under Section 11.5. In responding to any request under this Section 9.5, the Attorney General may exercise his or her discretion and choose to resolve a request for review by mediation or by a means other than the issuance of a binding opinion. The decision not to issue a binding opinion shall not be reviewable.’ 5 ILCS 140/9.5(f) (West 2010). Under the FOIA, when the PAC issues a binding opinion, the parties can seek review only under the Administrative Review Law, with its limitations on the court's s review of the agency's s decision. [Citations.] If the PAC ends its involvement without issuing a binding opinion, the requester may seek relief under section 11 of the FOIA (5 ILCS 140/11(f) (West 2010)), which permits the requester to file an original lawsuit for an injunction or for declaratory relief. In such a proceeding, the court owes no deference to the PAC's s nonbinding resolution of the request. See 5 ILCS 140/11 (West 2010). The court cannot review the PAC's s decision not to issue a binding opinion. See 5 ILCS 140/9.5(f) (West 2010). Instead, when the PAC issues no binding opinion, the court can directly review the public body's s decision to deny the request for copies of public documents. See 5 ILCS 140/11 (West 2010).”\r\n\r\n¶ 20\r\nC. This Case\r\n\r\n¶ 21\r\nHere, we agree with the Attorney General and find the trial court properly dismissed plaintiff's s mandamus complaint because plaintiff failed to state a claim upon which relief could be granted.\r\n\r\n¶ 22\r\nPlaintiff is not entitled to mandamus relief because he fails to demonstrate a clear right to the relief he seeks. In responding to plaintiff's s requests, the PAC concluded no further inquiry was necessary and notified plaintiff no further action would be taken. The Attorney General, citing section 9.5(f) of the FOIA, argues the PAC's s decision to resolve plaintiff's s request by means other than the issuance of a binding opinion was discretionary and therefore not subject to mandamus. Plaintiff does not dispute this fact but rather clarifies his mandamus complaint demands the PAC either “(1) notify [the] requestor his claims are unfounded; or (2) order the public body to produce the records for *** in camera review,” citing section 9.5(c) of the FOIA (id. § 9.5(c)). Plaintiff argues the PAC took neither of these actions as required by the statute. This is incorrect. Although the PAC here did not explicitly state in its decision letters that plaintiff's s claims were “unfounded,” the PAC fulfilled the duty to “determine whether further action [was] warranted,” and informed plaintiff that “no further action [would] be undertaken.” See id. The PAC was not required, in issuing its nonbinding decision, to specifically state it had determined the allegation was unfounded. The fact the PAC notified plaintiff and the public body it would not take further action presumes it determined the alleged violations were unfounded. The record shows—contrary to plaintiff's s arguments—the PAC fulfilled the duties enumerated in section 9.5(c) of the FOIA. See id.\r\n\r\n¶ 23\r\nMoreover, plaintiff's s assertion the PAC “certainly cannot in good faith declare [p]laintiff's s requests for review as ‘unfounded’ without first having obtained and reviewed the records at issue” is not persuasive. There will be many instances where the PAC can determine, based on the request for review, the requestor's s submitted materials, and the decision from the public body—without reviewing “the records at issue”—that no further action is warranted. This is especially true in instances where the public body determines it possesses no records responsive to the request. Additionally, the applicability of certain statutory exemptions from disclosure under FOIA may also be readily apparent on the face of a request for review and obviate any need for the PAC to obtain or review “the records at issue.” We agree with the Attorney General that although the PAC has authority to request from the public body any documents it deems necessary to the investigation of a request for review, the PAC is not required to request or obtain any documents at all. The PAC has discretion to decide what information or documents would assist in its review process.\r\n\r\n¶ 24\r\nThe Attorney General also argues dismissal was proper because the trial court lacked subject matter jurisdiction to review the PAC's s decision to resolve plaintiff's s requests for review by means other than issuing a binding opinion. We agree that under the FOIA, the decision not to issue a binding opinion is not subject to administrative review. Id. §§ 9.5(f), 11.5; see also Fagel v. Department of Transportation, 2013 IL App (1st) 121841,\r\n\r\n¶ 24\r\n, 991 N.E.2d 365 (“Because the PAC's s ruling in the case at bar was not a binding opinion under the statute, it was not subject to administrative review under section 11.5 of FOIA.”). However, we find this jurisdictional argument inapposite here because in his brief plaintiff specifically states he neither seeks a binding opinion from the Attorney General nor challenges its decision not to issue one. He also does not challenge the correctness of the decision to deny the request for review. Rather, as stated above, plaintiff sought to compel the PAC to fulfill its statutory duties under section 9.5(c) of the FOIA. Although plaintiff ultimately failed to state a claim for relief, the court possessed jurisdiction over his mandamus action. Ill. Const. 1970, art. VI, § 9 (“Circuit Courts shall have original jurisdiction of all justiciable matters.”).\r\n\r\n¶ 25\r\nIn conclusion, the circuit court properly granted the Attorney General's s motion to dismiss because plaintiff failed to state a claim for mandamus relief. If plaintiff chooses, he may seek direct review of the public bodies’ decisions to deny his FOIA requests by filing an original lawsuit for an injunction or for declaratory relief against those bodies under section 11 of the FOIA. 5 ILCS 140/11 (West 2016).\r\n\r\n¶ 26\r\nIII. CONCLUSION\r\n\r\n¶ 27\r\nFor the reasons stated, we affirm the trial court's s judgment.\r\n\r\n¶ 28\r\nAffirmed. - 9 -"} {"dedup_key":"2021 IL App (4th) 190539","dedup_key_type":"neutral_citation","neutral_citation":"2021 IL App (4th) 190539","case_name":"City of Bloomington v. Raoul","court_level":"Appellate","appellate_district":"4th","year":2021,"county":"Capacity as McLean","appellate_docket":"4-19-0539","circuit_docket":"17-MR-583","published":1,"authoring_justice":"Cavanagh","statute":["OMA"],"exemptions_cited":["2(c)(11)"],"public_body":"Bloomington City Council","requesting_party":null,"disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The court held that the Bloomington City Council violated the Open Meetings Act by discussing topics outside the scope of the litigation exception during a closed session. The court determined that the council's discussion focused on public relations and negotiation strategy rather than actual legal theories or litigation defenses, thereby exceeding the permitted scope of 5 ILCS 120/2(c)(11).","best_text_source":"Court Opinions - OMA/ocr output/City of Bloomington v. Raoul, 2021 IL App (4th) 190539.searchable.pdf","text_quality":"ocr_fallback","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:35.738038","site_category":"Closed Sessions","date_decided":"2021-04-26","site_url":"/cases/2021%20IL%20App%20(4th)%20190539/","text_url":"/case-text/2021%20IL%20App%20(4th)%20190539.txt","full_text":" Digitally signed\n See by Reporter of\n Sp. Decisions\n ) Reason: | attest to\n Illinois Official Reports Sf the accuracy and\n : \"i integrity of this\n\n Appellate Court Date: 2022.03.02\n 09:01:05 -06'00'\n\n\n\n\n City of Bloomington v. Raoul, 2021 IL App (4th) 190539\n\n\n\nAppellate Court THE CITY OF BLOOMINGTON, ILLINOIS; THE\nCaption BLOOMINGTON CITY COUNCIL; and TARI RENNER, in His\n Official Capacity as Mayor of the City of Bloomington, Plaintiffs-\n Appellees, v.KWAME RAOUL, in His Official Capacity as Attorney\n General of the State of Illinois, and JASON CHAMBERS, in His\n Official Capacity as McLean County State’s Attorney, Defendants\n (Kwame Raoul, in His Official Capacity as Attorney General of the\n State of Illinois, Defendant-Appellant).\n\n\n\nDistrict & No. Fourth District\n No. 4-19-0539\n\n\n\n\nFiled April 26, 2021\nRehearing denied May 19, 2021\n\n\nDecision Under Appeal from the Circuit Court of Sangamon County, No. 17-MR-583;\nReview the Hon. Ryan M. Cadagin, Judge, presiding.\n\n\n\nJudgment Reversed.\n\n\n\nCounsel on Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,\nAppeal Solicitor General, and Valerie Quinn, Assistant Attorney General, of\n counsel), for appellant.\n\n James G. Fahey and Lisa Harms Hartzler, of Sorling Northrup, of\n Springfield, for appellees.\n\f Panel JUSTICE CAVANAGH delivered the judgment of the court, with\n opinion.\n Justices Holder White and Steigmann concurred in the judgment and\n opinion.\n\n\n OPINION\n\nq1 The Bloomington City Council (City Council) held a closed session, citing the litigation\n exception to the Open Meetings Act (Act) (5 ILCS 120/2(c)(11) (West 2016)), to discuss the\n termination of an agreement with the Town of Normal (Normal). Defendant Jason Chambers,\n in his official capacity as McLean County State’s Attorney, subsequent to the meeting, filed a\n request for review with defendant Kwame Raoul, in his official capacity as Attorney General\n of the State of Illinois (AG), questioning the City Council’s use of the litigation exception. The\n AG, via a binding opinion, determined the City Council did not properly invoke the exception\n for “probable or imminent” litigation. Further, the AG opined the City Council violated the\n Act by engaging in discussion not focused on litigation but rather on other matters. Plaintiffs,\n the City of Bloomington, Illinois (Bloomington), the City Council, and Tari Renner, in his\n official capacity as Mayor of the City of Bloomington (Mayor), filed a complaint for\n administrative review of the AG’s decision. The circuit court of Sangamon County reversed\n the AG’s binding opinion. For the reasons that follow, we reverse the judgment of the circuit\n court.\n\nq2 I. BACKGROUND\nq3 In 1986, the communities of Bloomington and Normal entered into an intergovernmental\n agreement which provided for the sharing of revenue and expenses in an area of the two\n communities. The agreement purported to bind the parties until cancelled or revised by mutual\n agreement. In April 2014, Bloomington advised Normal the former objected to the agreement\n and was paying its share “under protest.” In response, Normal asked Bloomington to clarify\n its concerns.\n44 In November 2016, Bloomington’s city manager wrote to Normal’s counterpart that\n Bloomington thought the agreement “outdated *** and not legally binding.” The letter advised\n Normal that the City Council intended to vote on termination of the agreement. The\n Bloomington manager further expressed Bloomington’s desire to collaborate with Normal on\n termination and a replacement development program, noting, in the letter without further\n explanation, previous reference to litigation over termination of the agreement. Shortly\n thereafter, Normal’s mayor advised Bloomington’s mayor that Normal was “willing to discuss\n a termination plan.” As well during this period, officials of both entities communicated with\n the public and each other relative to termination of the agreement and how to accomplish that\n end.\nq5 On February 20, 2017, the City Council closed to the public a portion of its meeting to\n discuss “probable litigation.” The closed session continued for 1 hour and 21 minutes, of which\n the City Council made an audio recording, pursuant to the Act. The Mayor opened the closed\n session noting the question before the group was “how” the agreement at issue should end.\n During this introduction of the meeting topic, and after the Mayor completed his comments,\n\n -2-\n\f Bloomington’s attorney reminded the City Council the body should not discuss in the closed\n session the above-referenced “how” as noted by the Mayor, but rather confine the discussion\n to “which option is more or less likely to get the City in or out of litigation.”\n16 During the closed session, those attending focused their attention on three areas: (1) the\n public relations aspects of terminating the agreement, (2) possible approaches to terminating\n the agreement, and (3) the economics involved with various options and other relationships\n with Normal.\nq7 As to public relations, six of the nine council members expressed concern about how their\n actions would be perceived by the public. In addition, the Mayor, city manager, and\n corporation counsel each expressed opinions about this subject. Notably, the city attorney not\n only warned the group at the commencement of the meeting about discussion of matters other\n than proper litigation topics, he interjected during the meeting to remind the members again.\n The phraseology of those attending in discussing the various options included “may result in\n better public relations,” “Normal will savage the City,” “politically not palatable,” and “we\n have talking points.” Near the end of the meeting, the group discussed timing and an\n anticipated radio story.\nq8 An oft-discussed topic among the closed session participants as well was whether “Option\n A” or “Option B,” a variation of one of these, or another course was preferable. Notably, the\n options did not include litigation. Option A was a joint resolution with Normal, while Option\n B was unilateral termination of the agreement by Bloomington. Throughout, the group\n discussed some manner of communication with Normal’s board and whether that could take\n the form of a joint executive session or would have to take another form. Several individuals\n mentioned throughout the meeting that the entities regularly collaborated in many areas. Once\n again, at least six of the nine council members offered comments on the options, in addition to\n the Mayor, corporation counsel, and the city manager.\n49 Lastly, the group discussed throughout the monetary aspects of the various options and of\n other relationships with Normal. They discussed the suspension of payments pursuant to the\n agreement, whether a suspension would cost Bloomington more in the future, the perceived\n unequal payments Bloomington previously made under the agreement, whether the amount at\n issue was significant, and which of the options described would be the most economical.\n Several council members expressed their thoughts as did the mayor and corporation counsel.\n4 10 As to litigation, neither party had filed suit at the time of the meeting. As for any discussion\n of litigation, to the extent Bloomington’s council considered the issue, the comments fell into\n three categories: (1) the uncertainty of what a court might do, (2) the options likely to result in\n litigation, and (3) use by either Bloomington or Normal of the threat of a lawsuit as a\n negotiating tactic. Compared to the aforementioned primary topics, those attending did not\n focus much of their time or substance on these litigation related issues. One council member\n noted there was “no clear cut road as to whether Normal will sue the City.” Another\n characterized any lawsuit as a “minor issue.” Bloomington’s attorney thought litigation “could\n be plausible” but it was difficult to determine “the validity of Normal’s claim until it has been\n put into writing.” Ultimately, the meeting was bereft of any substantive discussion of possible\n legal claims, defenses, theories, or postures.\nql The week after the closed session meeting, the McLean County State’s Attorney, Jason\n Chambers, wrote the AG asking the Public Access Bureau to review Bloomington’s closed\n council session. The AG corresponded further with Chambers and solicited a written response\n\n -3-\n\f from Bloomington along with the audio recording and meeting minutes from the closed\n session. On June 6, 2017, the AG issued a binding opinion that the City Council violated the\n provisions of the Act in two respects. First, the City Council illegally entered closed session as\n it did not have “reasonable grounds to believe that a lawsuit was more likely than not to be\n instituted or was close at hand.” Second, the closed session improperly “focused not on the\n ‘strategies, posture, theories, and consequences’ of any probable litigation, but rather on the\n City Council’s course of action with respect to the Agreement.” The opinion recognized as\n reasonable the City Council’s belief litigation “could at some point result.” However, the AG\n found such belief is insufficient to invoke the closed meeting provisions of the Act, and the\n AG determined the City Council violated section 2 of the Act by discussing matters outside\n the scope of the closed meeting exception.\nq12 Bloomington, the City Council, and the Mayor sought administrative review of the AG’s\n opinion in the circuit court. After briefing and argument, the circuit court reversed the AG’s\n binding opinion. The AG then appealed.\n\n13 Il. ANALYSIS\nq14 A. The Open Meetings Act\nq15 The policy of the Act is reflected in section 1:\n “Policy. It is the public policy of this State that public bodies exist to aid in the conduct\n of the people’s business and that the people have a right to be informed as to the conduct\n of their business. In order that the people shall be informed, the General Assembly finds\n and declares that it is the intent of this Act to ensure that the actions of public bodies\n be taken openly and that their deliberations be conducted openly.\n The General Assembly further declares it to be the public policy of this State that\n its citizens shall be given advance notice of and the right to attend all meetings at which\n any business of a public body is discussed or acted upon in any way.” 5 ILCS 120/1\n (West 2016).\nq 16 The Act provides for exceptions that permit a body to close a meeting to the public:\n “The exceptions contained in subsection (c) are in derogation of the requirement that\n public bodies meet in the open, and therefore, the exceptions are to be strictly\n construed, extending only to subjects clearly within their scope.” 5 ILCS 120/2(b)\n (West 2016).\nq17 The exception at issue permits excluding the public to discuss:\n “Litigation, when an action against, affecting or on behalf of the particular public body\n has been filed and is pending before a court or administrative tribunal, or when the\n public body finds that an action is probable or imminent, in which case the basis for\n the finding shall be recorded and entered into the minutes of the closed meeting.” 5\n ILCS 120/2(c)(11) (West 2016).\n\n4 18 B. Standard of Review\nq19 This court previously discussed extensively the applicable standards of review in cases on\n administrative review. See Board of Education of Springfield School District No. 186 v.\n Attorney General, 2015 IL App (4th) 140941, 4] 20-23. We follow that lead herein.\n\fq20 The Administrative Review Law (735 ILCS 5/3-101 to 3-113 (West 2016)) “requires this\n court to review all questions of law and fact presented by the record in relation to the\n administrative agency’s decision and not the decision of the *** circuit court.” (Internal\n quotation marks omitted.) Board ofEducation of Springfield, 2015 IL App (4th) 140941, § 20.\n The proper standard of review “depends on whether the issue involves a question of fact, a\n question of law, or a mixed question of law and fact.” Jd.\nq21 This court has described these varying standards of review as follows:\n “An agency’s findings and conclusions of fact are deemed prima facie true and\n correct and will be overturned only if they are against the manifest weight of the\n evidence. [Citation.] A determination is against the manifest weight of the evidence if\n the opposite conclusion is clearly evident. [Citation.]\n [W]here the historical facts are admitted or established, the controlling rule of law\n is undisputed and the issue is whether the facts satisfy the statutory standard, the case\n presents a mixed question of fact and law for which the standard of review is clearly\n erroneous. [Citation.] An agency’s decision is clearly erroneous when the reviewing\n court is left with a firm and definite conviction that the agency has committed a mistake.\n [Citation.]” (Internal quotation marks omitted.) City of Champaign v. Madigan, 2013\n IL App (4th) 120662, 9] 25-26.\nq 22 The AG invites us to defer to his interpretation of the “probable or imminent” litigation\n terminology of the exception at issue should we find those terms ambiguous, pursuant to Board\n of Education of Springfield School District No. 186 v. Attorney General, 2017 IL 120343, 4 23,\n and the authorities therein. We do not find that these terms are ambiguous and decline that\n invitation.\n423 Given the plain language of the Act, and the established facts, our review is de novo. Our\n supreme court directs us “that where the historical facts are admitted or established, but a\n dispute exists as to whether the governing legal provisions were interpreted correctly by the\n administrative body, the case presents a purely legal question for which [the] review is\n de novo.” (Internal quotation marks omitted.) Board ofEducation of Springfield, 2015 IL App\n (4th) 140941, 4] 23. Therefore, we review independently the AG’s conclusion the City Council\n violated the Act. Id.\nq] 24 The AG contends he correctly concluded the City Council failed to comply with the Act’s\n provisions. Specifically, he argues (1) the City Council held a closed meeting without\n sufficient grounds to do so pursuant to section 2(c)(11) of the Act, and (2) even if the City\n Council properly entered a closed session, the City Council violated the Act by failing to\n discuss probable or imminent litigation. We address these issues in turn.\n\nq 25 C. The City Council Entered Closed Session Without Reasonable Grounds\n to Believe Litigation Was Probable or Imminent\nq 26 The Act requires public bodies to hold meetings open to the public subject to enumerated\n exceptions. 5 ILCS 120/2(a) (West 2016). Such exceptions “are in derogation of the\n requirement that public bodies meet in the open, and therefore, the exceptions are to be strictly\n construed, extending only to subjects clearly within their scope.” 5 ILCS 120/2(b) (West 2016).\n The exception at issue permits the closing of a meeting to consider ongoing litigation “or when\n\f the public body finds that an action is probable or imminent.” 5 ILCS 120/2(c)(11) (West\n 2016).\nq27 The AG cites in support of his argument Henry v. Anderson, 356 Ill. App. 3d 952 (2005).\n This court therein, where the president of a school board described litigation as “potential,”\n noted as to the litigation exception: “Evidently, the legislature intended to prevent public\n bodies from using the distant possibility of litigation as a pretext for closing their meetings to\n the public.” Jd. at 957. Because the Act requires “that the exceptions to the requirement of open\n meetings are to be strictly construed,” the school board’s failure to specify the basis for\n invoking the litigation exception violated the Act. /d. at 956-58. In this court’s words, the\n school board invoked the exception “without following through with the conditions attached\n to that exception.” Jd. at 956.\n428 The AG also relies on prior attorney general decisions interpreting the Act and argues those\n are entitled to deference as the office is the agency charged with enforcing the Act. As noted\n above, we find the reliance on those decisions inappropriate, as such deference is only due\n when the terms of the Act are ambiguous.\nq29 The AG’s interpretation of the statute is subject to de novo review. Board of Education of\n Springfield, 2015 IL App (4th) 140941, § 23.\n430 There was no litigation pending for Bloomington to invoke at the time of the meeting, and\n thus, that clause of the exception is inapplicable. Further, we find the council members did not\n reasonably believe that litigation was probable or imminent. For example, Bloomington’s\n attorney advised the group that litigation “could be plausible.” The attorney did not know if\n Normal hada valid claim, as Normal had shared nothing with him. One council member noted\n there was “no clear cut road” to litigation. Yet another member characterized any possible\n litigation as a “minor issue.” More than one member surmised Normal’s threat of a lawsuit\n could be a “negotiating tactic.” The Mayor told the press after the meeting he doubted Normal\n would file suit. Finally, the gist of the City Council’s discussion described elsewhere herein\n was not of a group that thought litigation was probable or imminent.\nq31 We conclude as proper the AG’s determination the City Council improperly invoked the\n litigation exception to enter a closed session, as litigation was not probable or imminent\n pursuant to section 2(c)(11) of the Act.\n\nq 32 D. Even if the City Council Lawfully Entered Closed Session,\n the City Council Violated the Act During the Closed Session\n as the Focus of the Discussion Was Not Litigation\n433 The Act explicitly requires its exceptions to open meetings “be strictly construed against\n closed meetings.” 5 ILCS 120/1(2) (West 2016). The process for closing a meeting directs that\n “To|nly topics specified in the vote to close under this Section may be considered during the\n closed meeting.” 5 ILCS 120/2a (West 2016). And as noted above, when a public body invokes\n an exception, “the exceptions are to be strictly construed” and extend “only to subjects clearly\n within their scope.” 5 ILCS 120/2(b) (West 2016).\nq34 The AG relies on Henry and a prior attorney general opinion, in support of his second\n contention. For brevity, we do not repeat our discussion of these above, but the analysis applies\n to this issue as well.\n\fq35 We find that even if the City Council lawfully closed the meeting, the City Council violated\n the Act by failing to abide by the conditions that confined their discussion to probable or\n imminent litigation. Bloomington’s attorney advised the closed meeting attendees at the outset\n to limit their discussion to litigation and reminded the group subsequently that it should not\n discuss the public relations aspect in closed session. Nevertheless, the group ignored these\n admonitions and instead discussed (1) Option A, Option B, and other options to terminate the\n agreement, none involving litigation; (2) the financial aspects of terminating; and (3) how to\n peddle the issues to their constituents. The language the council members utilized covered the\n gamut of terms evidencing the concern for how to best handle inquiries and criticism. They\n also discussed how to modify Options A and B and whether there were better options.\n436 Further, the great majority of the council members participated in the discussion of these\n topics, as did their leadership and counsel. Absent from the closed session was any discussion\n of legal theories, defenses, claims, or possible approaches to litigation. The commentary that\n did concern litigation related to (1) concern about the uncertainty of any outcome, (2) how to\n best avoid a lawsuit, and (3) whether Bloomington or Normal had or could use the threat of\n litigation in the course of negotiation.\nq37 On this record, we cannot conclude the City Council limited its discussion to topics within\n the scope of the litigation exception as required by the Act. The only court the group seemed\n concerned with was the court of public opinion. The AG correctly determined the City Council\n exceeded the scope of the litigation exception to the Act (see 5 ILCS 120/2(c)(11) (West\n 2016)), thereby violating the Act’s provisions.\n\n138 Ill. CONCLUSION\n439 For the foregoing reasons, we reverse the circuit court’s judgment reversing the AG’s\n binding opinion.\n\n4 40 Reversed.\n\f"} {"dedup_key":"2021 IL App (4th) 200148-U","dedup_key_type":"neutral_citation","neutral_citation":"2021 IL App (4th) 200148-U","case_name":"Rodney Love v. Illinois State Police","court_level":"Appellate","appellate_district":"4th","year":2021,"county":"Sangamon","appellate_docket":"4-20-0148","circuit_docket":"18-MR-963","published":0,"authoring_justice":"DeArmond","statute":["FOIA"],"exemptions_cited":[],"public_body":"Illinois State Police","requesting_party":"Rodney Love","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court affirmed the dismissal of the plaintiff's FOIA complaint. The court held that due to numerous deficiencies in the plaintiff's brief and the failure to provide a complete record of the trial court proceedings, it must presume the trial court's dismissal was proper.","best_text_source":"Court Opinions - FOIA/Love v. Illinois State Police, 2021 IL App (4th) 200148-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:35.738144","site_category":"FOIA Response Process","date_decided":"2021-10-20","site_url":"/cases/2021%20IL%20App%20(4th)%20200148-U/","text_url":"/case-text/2021%20IL%20App%20(4th)%20200148-U.txt","full_text":" NOTICE\n FILED\n 2021 IL App (4th) 200148-U October 20, 2021\nThis Order was filed under\n Carla Bender\nSupreme Court Rule 23 and NO. 4-20-0148 4th District Appellate\nis not precedent except in the\n Court, IL\nlimited circumstances IN THE APPELLATE COURT\nallowed under Rule 23(e)(1).\n\n OF ILLINOIS\n\n FOURTH DISTRICT\n\n\n RODNEY LOVE, ) Appeal from the\n Plaintiff-Appellant, ) Circuit Court of\n v. ) Sangamon County\n ILLINOIS STATE POLICE, ) No. 18MR963\n Defendant-Appellee. )\n ) Honorable\n ) Rudolph M. Braud Jr.,\n ) Judge Presiding.\n\n\n\n JUSTICE DeARMOND delivered the judgment of the court.\n Justices Turner and Harris concurred in the judgment.\n\n ORDER\n ¶1 Held: The appellate court affirmed, finding due to the numerous deficiencies in\n plaintiff’s brief where plaintiff failed to present claims of error which were\n supported by well-reasoned argument, relevant legal authority, and citations to the\n record, we must presume the trial court properly dismissed plaintiff’s complaint\n for declaratory judgment and injunctive relief.\n\n ¶2 In December 2018, plaintiff, Rodney Love, an inmate currently incarcerated at\n\n Stateville Correctional Center, filed a complaint for declaratory judgment and injunctive relief\n\n against defendant, the Illinois State Police (ISP), pursuant to the Freedom of Information Act\n\n (FOIA) (5 ILCS 140/1 et seq. (West 2018)), requesting the trial court find ISP in violation of\n\n FOIA and order ISP to release the documents related to his FOIA request.\n\n ¶3 In May 2019, ISP filed a motion to dismiss pursuant to section 2-619.1 of the\n\n Code of Civil Procedure (Civil Code) (735 ILCS 5/2-619.1 (West 2018)), arguing plaintiff’s\n\frequest was unduly burdensome under section 3(g) of FOIA (5 ILCS 140/3(g) (West 2018)) and\n\nwas a repeated request. In March 2020, the trial court entered a written order granting ISP’s\n\nmotion.\n\n¶4 Plaintiff appeals pro se, raising the following issues: (1) ISP failed to produce an\n\nindex of records; (2) ISP failed to answer plaintiff’s motions for production of documents and\n\nadmission of facts; (3) ISP failed to follow sections 2-605(a) and (b) of the Civil Code (735\n\nILCS 5/2-605(a), (b) (West 2018)); (4) ISP’s affidavits were vague; and (5) the trial court abused\n\nits discretion. We affirm.\n\n¶5 I. BACKGROUND\n\n¶6 In August 2018, plaintiff submitted a FOIA request to ISP, stating, “pursuant to 5\n\nILCS 140/1.1 I’m requesting the fingerprints that was [sic] tested on Evidence inventory under\n\n#10026088. The Evidence was received by this department on 9-9-02.”\n\n¶7 In September 2018, ISP denied plaintiff’s FOIA request. ISP explained the lab\n\nreports plaintiff sought “contain[ed] personal information which would clearly constitute an\n\nunwarranted invasion of personal privacy” and were therefore exempted from disclosure\n\npursuant to section 7(1)(c) of FOIA (5 ILCS 140/7(1)(c) (West 2018)). Thereafter, ISP’s FOIA\n\nofficer, Erin Davis, sent plaintiff a “Revised Response To FOIA Request,” indicating ISP “cited\n\nthe incorrect denial reason on the initial response.” Davis informed plaintiff of ISP’s\n\ndetermination his request was instead “unduly burdensome” under section 3(g) of FOIA (5 ILCS\n\n140/3(g) (West 2018)) because ISP previously provided plaintiff with “all three complete lab\n\ncase files in response to [his] previous FOIR #15-1956.” Davis further explained ISP previously\n\n“advised [plaintiff] in response to [his] previous FOIR # 15-2304 and again in response to [his]\n\nprevious FOIR # 16-1092 that [he] had already been provided with the entire case files and there\n\n\n\n\n -2-\n\fwere no additional records to provide to [him].” Nevertheless, Davis stated, “Inventory\n\n# 1[0]026088 (Haskell model JS-45 handgun) was never processed for fingerprints by [ISP] so\n\nthere are no records responsive to [plaintiff’s] request for fingerprint results related to that\n\ninventory number.”\n\n¶8 In December 2018, plaintiff filed a complaint for declaratory judgment and\n\ninjunctive relief against ISP pursuant to FOIA. Plaintiff requested the trial court find ISP in\n\nviolation of FOIA and order ISP to release the documents related to his FOIA request.\n\n¶9 On February 11, 2019, plaintiff filed a motion for production of documents,\n\nseeking “all documents responsive to Plaintiff[’s] foia [sic] request which are the subject of the\n\ncomplaint.” That same day, plaintiff filed an accompanying motion for admission of fact,\n\nrequesting ISP make “admissions relating too [sic] Plaintiff’s foia [sic] request and evidence sent\n\nto and by [ISP].”\n\n¶ 10 In May 2019, ISP filed a motion to dismiss plaintiff’s complaint pursuant to\n\nsection 2-619.1 of the Civil Code (735 ILCS 5/2-619.1 (West 2018)). ISP argued, in relevant\n\npart, “[p]laintiff’s request for fingerprints was for records or information from the same case files\n\n[ISP] had already provided, and [ISP] informed [plaintiff] there were no additional records from\n\nthose files. As such, Plaintiff’s request is a repeated request and thus unduly burdensome under\n\n§ 3(g) [of FOIA].” In support of its motion to dismiss, ISP attached the affidavit of Davis.\n\nDavis’s affidavit averred plaintiff “previously requested laboratory case files and was provided\n\nwith those entire files. He then sent additional FOIA requests for the same records and\n\ninformation. ISP informed him that he had already been provided with the case files, and that\n\nthere were no additional records to provide.”\n\n\n\n\n -3-\n\f¶ 11 In his June 2020 response to ISP’s motion to dismiss, plaintiff asserted, inter alia,\n\nthere were “numerous documents that [ISP] hasn’t turned over.” Plaintiff argued an index of\n\nrecords was necessary because there was a “genuine issue of disputed facts dealing with [ISP]\n\nclaiming [it] gave all the records.”\n\n¶ 12 In February 2020, the trial court conducted a telephone hearing on ISP’s motion\n\nto dismiss plaintiff’s complaint. (We note no report of the proceedings or bystander’s report for\n\nthis hearing is included in the record on appeal.) In March 2020, the court entered a written order\n\ngranting ISP’s motion to dismiss with prejudice.\n\n¶ 13 This appeal followed.\n\n¶ 14 II. ANALYSIS\n\n¶ 15 As previously stated, plaintiff raised five issues on appeal. However, plaintiff’s\n\nbrief contains no real analysis on any of the issues. Instead, he mostly provided extended\n\nquotations from statutes—when he cited statutes—without providing any specifics regarding\n\nthese allegations or explaining how the law supports his claims of error.\n\n¶ 16 Illinois Supreme Court Rule 341(h) (eff. May 25, 2018) sets forth the necessary\n\nrequirements which must be met when filing an appellant brief. Rule 341(h)(7) states an\n\nappellant’s brief shall include:\n\n “Argument, which shall contain the contentions of the appellant\n\n and the reasons therefor, with citation of the authorities and the\n\n pages of the record relied on. Evidence shall not be copied at\n\n length, but reference shall be made to the pages of the record on\n\n appeal where evidence may be found.” Ill. S. Ct. R. 341(h)(7) (eff.\n\n May 25, 2018).\n\n\n\n\n -4-\n\fThe rules of our supreme court are not aspirational. “ ‘They have the force of law, and the\n\npresumption must be that they will be obeyed and enforced as written.’ ” Billerbeck v.\n\nCaterpillar Tractor Co., 292 Ill. App. 3d 350, 353, 685 N.E.2d 1018, 1020 (1997) (quoting\n\nBright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275, 277-78 (1995)). “A reviewing court is\n\nentitled to have issues clearly defined with pertinent authority cited and coherent arguments\n\npresented; arguments inadequately presented on appeal are waived. [Citation.] Statements\n\nunsupported by argument or citation of relevant authority do not merit consideration on review.\n\n[Citation.] A reviewing court will not become an advocate for, as well as the judge of, points the\n\nappellant seeks to raise. [Citation.]” Vernon Hills III Ltd. Partnership v. St. Paul Fire & Marine\n\nInsurance Co., 287 Ill. App. 3d 303, 311, 678 N.E.2d 374, 379 (1997). “A party’s status as a\n\npro se litigant, as here, does not relieve him [or her] of [the] obligation to comply with appellate\n\nrules.” Matlock v. Illinois Department of Employment Security, 2019 IL App (1st) 180645, ¶ 14,\n\n130 N.E.3d 41. A reviewing court “is not a repository for an appellant to foist the burden of\n\nargument and research.” Enadeghe v. Dahms, 2017 IL App (1st) 162170, ¶ 23, 95 N.E.3d 1170.\n\n¶ 17 Plaintiff’s brief fails to comply with Rule 341(h) in a number of particulars.\n\nPlaintiff failed to provide any jurisdictional statement as required by Illinois Supreme Court Rule\n\n341(h)(4) (eff. May 25, 2018), and he failed to provide a concise statement of the applicable\n\nstandard of review, with citation of authority for each issue, as required by Illinois Supreme\n\nCourt Rule 341(h)(3) (eff. May 25, 2018). He failed to provide proper citations to the record,\n\ndevelop legal argument, or cite relevant authority. Further, plaintiff’s “statement of facts” section\n\nprovided the following in its entirety: “Rodney Love filed a Petition 735 ILCS 5/2-701, 5 ILCS\n\n140-1.1 arguing that the defendants denied Plaintiff access to Public records. Following\n\narguments, the circuit court granted the State’s motion to dismiss Rodney Love’s Petition.”\n\n\n\n\n -5-\n\fThere are no specific facts regarding what transpired at that hearing to form the bases for\n\nplaintiff’s claims. Moreover, no facts are presented indicating (1) what “Public records” ISP\n\npurportedly denied plaintiff access to or (2) what the trial court allegedly did—or failed to do—\n\nin support of plaintiff’s contentions on appeal. See Ill. S. Ct. R. 341(h)(6) (eff. May 25, 2018)\n\n(stating an appellant’s brief “shall contain the facts necessary to an understanding of the case”).\n\nIt is therefore impossible to ascertain any relevant background information regarding the issues\n\nprecipitating this appeal without extracting them from the record ourselves—a task we are not\n\nand should not be expected to do. The best this court could do was recite the facts as they appear\n\nfrom the common law record. Because plaintiff utterly failed to comply with the briefing\n\nrequirements, he forfeited all five issues he raised on appeal.\n\n¶ 18 Even seeking to charitably interpret plaintiff’s statement that “[d]efendants failed\n\nto produce an index of records,” as a cogent argument, there is little, if anything, which could be\n\nconstrued as a legal argument therein. Even so, plaintiff’s contention fails, as the record in this\n\ncase contains no evidence plaintiff was denied access to any records. See 5 ILCS 140/11(e)\n\n(West 2018) (“On motion of the plaintiff, *** the court shall order the public body to provide an\n\nindex of the records to which access has been denied.” (Emphasis added.)). To the contrary,\n\nDavis’s affidavit averred plaintiff “had already been provided with the case files, and that there\n\nwere no additional records to provide.”\n\n¶ 19 Plaintiff did not include in the record on appeal a transcript of the hearing on\n\nISP’s motion to dismiss. As a result, we are unable to discern exactly what evidence was before\n\nthe trial court and on what basis the trial court made its rulings without scouring the common law\n\nrecord in an attempt to extract information consistent with plaintiff’s cryptic claims. Although it\n\nis clear plaintiff seeks reversal of the trial court’s granting of ISP’s motion to dismiss, without\n\n\n\n\n -6-\n\fthat information, we are to presume the trial court made the correct finding based on the\n\nevidence before it. See Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984)\n\n(“[A]n appellant has the burden to present a sufficiently complete record of the proceedings at\n\ntrial to support a claim of error, and in the absence of such a record on appeal, it will be\n\npresumed that the order entered by the trial court was in conformity with law and had a sufficient\n\nfactual basis. Any doubts which may arise from the incompleteness of the record will be resolved\n\nagainst the appellant.”). Therefore, rather than simply dismissing the appeal due to its many\n\ndeficiencies, we affirm the trial court’s judgment.\n\n¶ 20 III. CONCLUSION\n\n¶ 21 For the foregoing reasons, we affirm the trial court’s judgment.\n\n¶ 22 Affirmed.\n\n\n\n\n -7-\n\f"} {"dedup_key":"2021 IL App (5th) 190434-U","dedup_key_type":"neutral_citation","neutral_citation":"2021 IL App (5th) 190434-U","case_name":"Marlon L. Watford v. James Rowe, Jamie Boyd, Nancy Nicholson, and Bobbi Wheeler","court_level":"Appellate","appellate_district":"5th","year":2021,"county":"Randolph","appellate_docket":"5-19-0434","circuit_docket":"16-MR-83","published":0,"authoring_justice":"Cates","statute":["FOIA"],"exemptions_cited":[],"public_body":"Kankakee County State’s Attorney’s Office","requesting_party":"Marlon L. Watford","disposition":"dismissed","relevance":"relevant","summary_source":"syllabus","summary":"The court affirmed the dismissal of the plaintiff's FOIA complaint because the requested discovery materials were already subject to a discovery order in the plaintiff's separate postconviction proceedings. The court also held that the plaintiff was not entitled to attorney fees, costs, or a civil penalty, and that the trial court did not abuse its discretion in denying a motion for default judgment.","best_text_source":"Court Opinions - FOIA/Watford v. Rowe, 2021 IL App (5th) 190434-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:36.852795","site_category":"FOIA Response Process","date_decided":"2021-10-04","site_url":"/cases/2021%20IL%20App%20(5th)%20190434-U/","text_url":"/case-text/2021%20IL%20App%20(5th)%20190434-U.txt","full_text":" NOTICE\n 2021 IL App (5th) 190434-U\n NOTICE\n Decision filed 10/04/21. The\n This order was filed under\n text of this decision may be NO. 5-19-0434 Supreme Court Rule 23 and is\n changed or corrected prior to\n not precedent except in the\n the filing of a Petition for\n Rehearing or the disposition of\n IN THE limited circumstances allowed\n under Rule 23(e)(1).\n the same.\n APPELLATE COURT OF ILLINOIS\n\n FIFTH DISTRICT\n______________________________________________________________________________\n\nMARLON L. WATFORD, ) Appeal from the\n ) Circuit Court of\n Plaintiff-Appellant, ) Randolph County.\n )\nv. ) No. 16-MR-83\n )\nJAMES ROWE, JAMIE BOYD, NANCY )\nNICHOLSON, and BOBBI WHEELER, ) Honorable\n ) Eugene E. Gross,\n Defendants-Appellees. ) Judge, presiding.\n______________________________________________________________________________\n\n JUSTICE CATES delivered the judgment of the court.\n Justices Moore and Wharton concurred in the judgment.\n\n ORDER\n\n¶1 Held: We affirm the Randolph County circuit court’s dismissal of the plaintiff’s\n complaint because the plaintiff’s Freedom of Information Act request to the\n Kankakee County State’s Attorney’s Office requested discovery materials\n that were the subject of a discovery order in the plaintiff’s postconviction\n proceedings in the Kankakee County circuit court. Furthermore, the plaintiff\n was not entitled to an award of attorney fees, costs, or a civil penalty. Finally,\n the Randolph County circuit court did not abuse its discretion in denying the\n plaintiff’s motion for default judgment.\n\n¶2 Plaintiff, Marlon L. Watford, appeals from the Randolph County circuit court’s\n\ndismissal of his complaint filed pursuant to section 11 of the Freedom of Information Act\n\n\n\n\n 1\n\f(FOIA) (5 ILCS 140/1 et seq. (West 2016)) and the denial of his motion for default\n\njudgment. For the reasons that follow, we affirm.\n\n¶3 BACKGROUND\n\n¶4 At all relevant times discussed herein, Watford was an inmate at Menard\n\nCorrectional Center in Randolph County, serving a natural life sentence he received in his\n\ncriminal case in Kankakee County, case No. 97-CF-578. At the time of the proceedings\n\nbelow in the Randolph County circuit court, postconviction proceedings regarding his\n\ncriminal case were pending in the Kankakee County circuit court.\n\n¶5 On May 21, 2012, Watford, acting pro se, filed a motion for discovery in his\n\npostconviction case in Kankakee County. In his motion for discovery, Watford sought “the\n\ncomplete autopsy reports and toxicology reports of Michael Calvin” and “a complete copy\n\nof all 412 discovery that the State tendered over during the complete course of [Watford’s]\n\ntrial.” The Kankakee County State Attorney’s Office (SAO) opposed Watford’s discovery\n\nmotion, arguing that Watford had no right to the materials he sought and alleged that\n\nWatford wished “to go on a fishing expedition.” On February 26, 2016, the Kankakee\n\nCounty circuit court denied Watford’s motion for discovery, finding that Watford had not\n\nshown “good cause” to grant his motion.\n\n¶6 Thereafter, in April 2016, Watford sent a FOIA request to the SAO requesting, “a\n\ncopy of all toxicology reports of Michael Calvin and a copy of all discovery documents\n\nfrom case number 97-CF-578.” The SAO denied Watford’s request in a letter, citing\n\nsection 7(1)(a) of the FOIA (5 ILCS 140/7(1)(a) (West 2016)). The denial letter provided\n\nthe following:\n 2\n\f “1. 412 Disclosures. 5 ILCS 140/7(1)(a) exempts information specifically\n\n prohibited from disclosure by federal or State law or rules and regulations\n\n implementing federal or State law. The records you have requested are the\n\n subject of a criminal prosecution that has remained an open file. Supreme\n\n Court Rules govern discovery in criminal felony cases (Supreme Court Rule\n\n 411). Supreme Court Rule 412 allows the court jurisdiction over disclosures.\n\n Disclosure is further prohibited under Supreme Court Rule 415. Supreme\n\n Court Rule 415(c) further requires that any materials furnished in a criminal\n\n case should remain in the exclusive custody of the attorney and be subject to\n\n other such terms and conditions that the court may provide. The State’s\n\n Attorney risks running afoul of the jurisdiction of the presiding judge if it\n\n were to furnish 412 discovery materials outside of the court proceedings,\n\n without a court order to do so.”\n\nThe SAO’s denial letter further provided that Illinois Supreme Court Rule 201(b)(2) (eff.\n\nJuly 1, 2014) exempted any privileged communications or work product from disclosure.\n\nThe SAO suggested that Watford direct his request to the “investigating agency” as the\n\nSAO was not “the originating agency of these reports.” Finally, Watford was informed that\n\nhe may seek review of the denial of his FOIA request with the Illinois Attorney General’s\n\nOffice or institute proceedings in the Kankakee County circuit court.\n\n¶7 On September 27, 2016, Watford filed a pro se complaint pursuant to section 11 of\n\nthe FOIA in the Randolph County circuit court. In his complaint, Watford alleged that the\n\n\n 3\n\fSAO 1 improperly denied his FOIA request. Watford sought an order compelling the SAO\n\nto turn over the materials he had requested, as well as attorney fees, costs, and a civil\n\npenalty.\n\n¶8 The next day, the Randolph County circuit court entered an order dismissing\n\nWatford’s complaint sua sponte. The Randolph County circuit court found that Watford’s\n\nsuit was an attempt to “circumvent the Circuit Court of Kankakee County and to violate\n\nthe discovery process.” In its order, the Randolph County circuit court stated that Randolph\n\nCounty was not the proper venue to direct disclosure of material in Watford’s Kankakee\n\nCounty case. The Randolph County circuit court further stated that the discovery issues\n\nshould be addressed in Watford’s Kankakee County case. Watford appealed.\n\n¶9 On appeal, this court vacated the judgment of the Randolph County circuit court and\n\nremanded Watford’s case for further proceedings because the circuit court prematurely\n\ndismissed Watford’s complaint. See Watford v. Boyd, 2018 IL App (5th) 160468-U. This\n\ncourt noted that the sua sponte dismissal was entered before the expiration of the 30-day\n\nperiod for the SAO to file an answer. Watford, 2018 IL App (5th) 160468-U, ¶ 16. We\n\nfurther noted that there was no indication in the record that the SAO had been served with\n\nsummons or a copy of the complaint, or even had actual notice of the filing of the\n\ncomplaint. Watford, 2018 IL App (5th) 160468-U, ¶ 16.\n\n\n\n 1\n At the time Watford filed his complaint, defendant Jamie Boyd was the Kankakee County State’s\nAttorney, and defendant Bobbi Wheeler was a paralegal in the SAO’s office. During the pendency of this\ncase, defendant James Rowe became the Kankakee County State’s Attorney, and defendant Wheeler was\nno longer employed at the SAO’s office. Upon Watford’s motion, defendants Rowe and Nancy Nicholson\nwere substituted for defendants Boyd and Wheeler. For clarity’s sake, we will refer to the defendants\ncollectively as “the SAO,” unless it is necessary differentiate the individual defendants.\n 4\n\f¶ 10 On remand, Rowe was served with a summons on April 9, 2019. Thereafter, on May\n\n22, 2019, Rowe filed a combined motion to dismiss pursuant to section 2-619.1 of the Code\n\nof Civil Procedure (Civil Code) (735 ILCS 5/2-619.1 (West 2018)). In his combined\n\nmotion to dismiss, Rowe asserted that Watford’s complaint must be dismissed pursuant to\n\nsection 2-619(a)(9) of the Civil Code (735 ILCS 5/2-619(a)(9) (West 2018)) because the\n\nrequested materials were exempt from disclosure pursuant to section (7)(1)(a) of the FOIA.\n\nRowe argued that withholding materials pursuant to Rule 415(c) was proper because the\n\nrule precluded disclosure of the materials to Watford because he was not an attorney. Rowe\n\nfurther argued that Watford’s access to the materials he sought had been limited by the\n\nKankakee County circuit court, where Watford’s postconviction proceedings were\n\npending. Rowe contended that Watford “may not utilize FOIA to circumvent the\n\n[Kankakee County circuit court’s] order in his criminal post-conviction proceeding by\n\nsuing for the release of the same documents under FOIA.”\n\n¶ 11 As to Watford’s claim for attorney fees, costs, and a civil penalty, Rowe asserted\n\nthat Watford’s claim must be dismissed pursuant to section 2-615 of the Civil Code (735\n\nILCS 5/2-615 (West 2018)) for failure to state a claim. Rowe contended that Watford had\n\nfailed to allege that the SAO willfully or intentionally failed to comply with the FOIA.\n\nRowe argued that it responded to Watford’s FOIA request in a timely manner and cited the\n\napplicable exemptions that prevented disclosure of the materials sought. Rowe further\n\nargued that Watford was advised of his right to appeal to the Illinois Attorney General’s\n\nOffice or to institute proceedings in the circuit court. Finally, Rowe contended that Watford\n\nwas a pro se plaintiff and not entitled to an award of attorney fees or costs. On July 3, 2019,\n 5\n\fWatford filed a motion for an extension of time to respond to Rowe’s motion to dismiss.\n\nThe Randolph County circuit court granted Watford an additional 60 days to respond.\n\n¶ 12 On August 9, 2019, Nicholson filed a motion to dismiss pursuant to section 2-615\n\nof the Civil Code.2 Nicholson argued that she was not a proper defendant in a FOIA action\n\nbecause she was an individual public employee, not a public body. Nicholson also adopted\n\nRowe’s motion to dismiss.\n\n¶ 13 On August 12, 2019, Watford filed a motion for default judgment alleging that\n\nRowe had failed to timely file an answer to Watford’s complaint. Specifically, Watford\n\nargued that Rowe had 30 days to answer Watford’s complaint but filed his motion to\n\ndismiss 13 days after the 30-day deadline. On August 19, 2019, the SAO filed a response\n\nin opposition to Watford’s motion for default judgment. The SAO asserted that they had\n\nanswered Watford’s complaint by filing motions to dismiss and that default judgments are\n\nnot favored. The SAO argued that Watford’s motion for default judgment should be denied\n\nbecause he did not move for default judgment before Rowe filed his motion to dismiss.\n\n¶ 14 On August 21, 2019, the Randolph County circuit court denied Watford’s motion\n\nfor default judgment. The Randolph County circuit court also granted the SAO’s motion\n\nto dismiss filed on May 22, 2019, and dismissed Watford’s complaint with prejudice.\n\n¶ 15 On September 16, 2019, Watford filed a “Motion for Reconsideration” and a\n\n“Motion in Opposition to Motion to Dismiss.” In his motion for reconsideration, Watford\n\nasserted that the Randolph County circuit court improperly dismissed Watford’s complaint\n\n\n 2\n The record does not show that Nicholson was ever served. Nevertheless, Nicholson appeared and\nfiled a motion to dismiss.\n 6\n\fbecause he had not yet responded to the SAO’s motion to dismiss. Watford argued that the\n\ndismissal order was entered before the expiration of the 60-day extension the circuit court\n\nhad granted Watford to respond to the SAO’s motion to dismiss. Watford also argued that\n\nhis motion for default judgment should have been granted. In his opposition to the SAO’s\n\nmotion to dismiss, Watford argued that the circuit court should have denied the SAO’s\n\nmotion.\n\n¶ 16 On September 18, 2019, the Randolph County circuit court entered an order\n\ngranting Watford leave to file his opposition to the SAO’s motion to dismiss. The order\n\nprovided that after considering Watford’s response, the circuit court determined that the\n\nrequested materials were exempt from disclosure. The order further provided that:\n\n “As stated in the Order entered in this case on September 28, 2016, Plaintiff\n\n is an inmate at Menard Correctional Center serving a natural life sentence\n\n (commuted from death) in Kankakee County Case 97-CF-578. Plaintiff has\n\n (or had) pending a postconviction petition in the Kankakee County case. This\n\n action is an attempt to circumvent the Circuit Court of Kankakee County and\n\n to violate the discovery process.”\n\nThe circuit court granted the SAO’s motion to dismiss and dismissed Watford’s complaint\n\nwith prejudice. This appeal followed.\n\n¶ 17 ANALYSIS\n\n¶ 18 On appeal, Watford argues that the Randolph County circuit court erred in granting\n\nthe SAO’s motion to dismiss Watford’s complaint. Specifically, Watford argues: (1) that\n\nthe materials he sought in his FOIA request were not exempt from disclosure; (2) that the\n 7\n\fKankakee County circuit court discovery order did not preclude the disclosure of the\n\nmaterials he sought in his FOIA request; (3) that he sufficiently pled a cause of action for\n\nattorney fees, costs, and a civil penalty; and (4) that his motion for default judgment should\n\nhave been granted.\n\n¶ 19 Before considering whether the Randolph County circuit court properly dismissed\n\nWatford’s complaint, we must set out the parameters of our review. Here, the SAO moved\n\nto dismiss Watford’s complaint pursuant to section 2-619.1 of the Civil Code, which\n\nallowed the SAO to file a combined motion to dismiss pursuant to sections 2-619(a)(9) and\n\n2-615. See 735 ILCS 5/2-619.1 (West 2018). The Randolph County circuit court’s order\n\nprovided that the circuit court granted the SAO’s motion pursuant to section 2-619.\n\n¶ 20 The purpose of a section 2-619 motion to dismiss is to dispose of issues of law and\n\neasily proved issues of fact early in the litigation. In re Appointment of Special Prosecutor,\n\n2019 IL 122949, ¶ 28. A motion to dismiss pursuant to section 2-619(a)(9) permits the\n\ninvoluntary dismissal of an alleged claim that is barred by other affirmative matter that\n\navoids the legal effect of or defeats the claim. Special Prosecutor, 2019 IL 122949, ¶ 28.\n\nThe movant admits the legal sufficiency of the complaint but asserts that some affirmative\n\nmatter defeats the claim. Special Prosecutor, 2019 IL 122949, ¶ 28. When ruling on a\n\nmotion to dismiss pursuant to section 2-619, a court must interpret all pleadings and\n\nsupporting documents in favor of the nonmoving party. Special Prosecutor, 2019 IL\n\n122949, ¶ 28. “An affirmative matter is ‘something in the nature of a defense which negates\n\nthe cause of action completely or refutes crucial conclusions of law or conclusions of\n\nmaterial fact contained in or inferred from the complaint.’ ” Special Prosecutor, 2019 IL\n 8\n\f122949, ¶ 28 (quoting Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 486 (1994)). We\n\nreview a dismissal under section 2-619 de novo. Van Meter v. Darien Park District, 207\n\nIll. 2d 359, 367 (2003). Furthermore, we may affirm the judgment of the circuit court on\n\nany basis that is supported by the record. Stoll v. United Way of Champaign County,\n\nIllinois, Inc., 378 Ill. App. 3d 1048, 1051 (2008).\n\n¶ 21 Here, the Randolph County circuit court found that the materials Watford sought in\n\nhis FOIA request were exempt from disclosure and that Watford was attempting to\n\ncircumvent the discovery order entered by the Kankakee County circuit court. We begin\n\nour analysis with the effect of the Kankakee County circuit court’s discovery order.\n\n¶ 22 During the pendency of Watford’s FOIA suit in the Randolph County circuit court,\n\npostconviction proceedings were pending in Watford’s criminal case in the Kankakee\n\nCounty circuit court. In postconviction proceedings, neither the civil discovery rules nor\n\nthe criminal discovery rules apply. People v. Fair, 193 Ill. 2d 256, 264 (2000). Nonetheless,\n\ncircuit courts have inherent discretionary authority to order discovery in postconviction\n\nproceedings. Fair, 193 Ill. 2d at 264. This authority, however, must be exercised with\n\ncaution because postconviction proceedings afford only limited review of constitutional\n\nclaims not presented at trial, and there is a potential for abuse of the discovery process in\n\npostconviction proceedings. Fair, 193 Ill. 2d at 264. Accordingly, the circuit court should\n\nallow discovery only after the postconviction petitioner has shown “good cause” for a\n\ndiscovery request. Fair, 193 Ill. 2d at 264-65.\n\n¶ 23 The record shows that Watford filed a motion for discovery in his postconviction\n\nproceedings, and the SAO’s office contested Watford’s motion. The Kankakee County\n 9\n\fcircuit court, exercising its discretion, denied Watford’s motion. In its order, the propriety\n\nof which is not before this court, the Kankakee County circuit court found that Watford\n\nhad not shown good cause to grant his discovery request. Thereafter, Watford filed a FOIA\n\nrequest with the SAO for the same discovery materials he sought in his postconviction\n\ndiscovery motion. After the SAO denied his request, Watford initiated the proceedings\n\nbelow in the Randolph County circuit court.\n\n¶ 24 In considering the circumstances of this case, we find that our supreme court’s\n\ndecision in Special Prosecutor provides considerable guidance. In that case, our supreme\n\ncourt analyzed the relationship between a FOIA request that conflicted with a court-ordered\n\ninjunction. Our supreme court determined that “where a circuit court with personal and\n\nsubject-matter jurisdiction issues an injunction, the injunction must be obeyed, however\n\nerroneous it may be, until it is modified or set aside by the court itself or reversed by a\n\nhigher court.” Special Prosecutor, 2019 IL 122949, ¶ 64. Accordingly, our supreme court\n\nheld that “a lawful court order takes precedence over the disclosure requirements of [the]\n\nFOIA.” Special Prosecutor, 2019 IL 122949, ¶ 66. As our supreme court further explained:\n\n “The rule that a FOIA lawsuit may not be used to collaterally attack an\n\n injunction prohibiting disclosure of records does not mean that there is no\n\n remedy for the FOIA requestor. Rather, the requester must first have the\n\n court that issued the injunction modify or vacate its order barring disclosure.\n\n If the issuing court refuses, the FOIA requestor may challenge the refusal in\n\n a direct appeal rather than an impermissible collateral attack.” Special\n\n Prosecutor, 2019 IL 122949, ¶ 67.\n 10\n\f¶ 25 We find that our supreme court’s analysis applies equally here. We observe that the\n\nKankakee County circuit court did not issue an injunction prohibiting the disclosure of\n\ncertain materials, as was the case in Special Prosecutor. Nevertheless, the Kankakee\n\nCounty circuit court did enter an order denying Watford’s discovery request, finding that\n\nhe had not shown good cause for the disclosure of the requested materials. It bears\n\nrepeating, the propriety of the Kankakee County circuit court’s order is not an issue before\n\nthis court. The issue before this court is whether a person may use the FOIA to obtain\n\ndiscovery materials after his or her motion for discovery has been denied in a separate\n\ncollateral proceeding that is still pending. Following our supreme court’s guidance, we hold\n\nthat the FOIA may not be used in this manner. Thus, the Randolph County circuit court\n\nproperly dismissed Watford’s complaint for this reason, and we need not address whether\n\nthe requested materials were exempt under section 7(1)(a) of the FOIA.\n\n¶ 26 Next, Watford contends that he sufficiently pled a cause of action for attorney fees,\n\ncosts, and a civil penalty. Section 11(i) of the FOIA provides, in relevant part that, if a\n\nFOIA requester “prevails in a proceeding under this Section, the court shall award such\n\nperson reasonable attorney’s fees and costs.” 5 ILCS 140/11(i) (West 2018). We have\n\nalready determined that the Randolph County circuit court properly dismissed Watford’s\n\ncomplaint, and thus, Watford was not entitled to an award of attorney fees or costs\n\nregardless of whether he pled a sufficient claim for such. See Garlick v. Bloomingdale\n\nTownship, 2018 IL App (2d) 171013, ¶ 40 (concluding that the circuit court did not err in\n\nstriking the plaintiff’s request for attorney fees and costs, because the plaintiff did not\n\nprevail on his claim). Furthermore, Watford was not entitled to an award of attorney fees\n 11\n\fbecause he incurred no attorney fees as a pro se litigant. Garlick, 2018 IL App (2d) 171013,\n\n¶ 40. As for civil penalties, section 11(j) of the FOIA allows the circuit court to impose a\n\ncivil penalty upon a public body if the court determines that the public body “willfully and\n\nintentionally failed to comply with [the FOIA], or otherwise acted in bad faith.” 5 ILCS\n\n140/11(j) (West 2018). The record in this case does not show that the SAO intentionally or\n\nwillfully failed to comply with the FOIA or otherwise acted in bad faith. Accordingly, we\n\nfind that the Randolph County circuit court did not err in dismissing Watford’s complaint\n\nas it related to his request for attorney fees, costs, and a civil penalty.\n\n¶ 27 Finally, Watford contends that the Randolph County circuit court erred in denying\n\nhis motion for default judgment. A circuit court may enter a default judgment for want of\n\nan appearance or for failure to plead. 735 ILCS 5/2-1301(d) (West 2018). Although a court\n\nmay enter a default judgment for these reasons, default judgment is a drastic measure, not\n\nto be encouraged and to be employed as a last result. Rockford Housing Authority v.\n\nDonahue, 337 Ill. App. 3d 571, 573-74 (2003). The law prefers that controversies are\n\ndecided on the parties’ substantive rights. Godfrey Healthcare & Rehabilitation Center,\n\nLLC v. Toigo, 2019 IL App (5th) 170473, ¶ 39. We review a circuit court’s ruling on a\n\nmotion for default judgment for an abuse of discretion or a denial of substantial justice.\n\nJackson v. Bailey, 384 Ill. App. 3d 546, 548 (2008).\n\n¶ 28 Here, Rowe was served on April 9, 2019, and Nicholson was never served. The\n\nsummons indicated that Rowe was required to appear and plead within 30 days of the\n\nservice of the summons. On May 22, 2019, 13 days after the 30-day deadline, Rowe filed\n\nhis appearance and motion to dismiss. No motion for default judgment had been filed at\n 12\n\fthis time. Nicholson joined Rowe’s motion to dismiss on August 9, 2019, despite never\n\nhaving been served. Watford filed his motion for default judgment on August 12, 2019, 82\n\ndays from the date Rowe filed his motion to dismiss.\n\n¶ 29 We find that the circumstances of this case are akin to that of Bland v. Lowery, 43\n\nIll. App. 3d 413 (1976). In Bland, the defendants filed their appearance and motion to\n\ndismiss 15 days after the 30-day period to appear and plead. Bland, 43 Ill. App. 3d at 419.\n\nIn those 15 days, the plaintiff did not move for default judgment. Bland, 43 Ill. App. 3d at\n\n419. Instead, the plaintiff waited until five months after the motion to dismiss was filed\n\nbefore moving for default judgment. Bland, 43 Ill. App. 3d at 419. The appellate court\n\nfound that the trial court did not abuse its discretion in denying the plaintiff’s motion for\n\ndefault judgment. Bland, 43 Ill. App. 3d at 419. Likewise, we find that the Randolph\n\nCounty circuit court did not abuse its discretion in denying Watford’s motion for default\n\njudgment. Both Rowe and Nicholson, even though she had not been served, appeared and\n\npled before Watford moved for default judgment.\n\n¶ 30 For the reasons stated herein, we affirm the judgment of the Randolph County\n\ncircuit court.\n\n\n\n¶ 31 Affirmed.\n\n\n\n\n 13\n\f"} {"dedup_key":"2022 IL App (1st) 200547","dedup_key_type":"neutral_citation","neutral_citation":"2023 IL 128300","case_name":"Chapman v. Chicago Department of Finance","court_level":"Supreme","appellate_district":"1st","year":2022,"county":"Cook","appellate_docket":"128300","circuit_docket":null,"published":1,"authoring_justice":"Holder White","statute":["FOIA"],"exemptions_cited":["7(1)(o)"],"public_body":"Chicago Department of Finance","requesting_party":"Matt Chapman","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The Supreme Court held that the records requested by the plaintiff constituted 'file layouts' within the meaning of section 7(1)(o) of FOIA. Consequently, the court ruled the records were exempt from disclosure and reversed the lower courts' judgments.","best_text_source":"Court Opinions - FOIA/Chapman v. Chicago Department of Finance, 2023 IL 128300.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:37.118057","site_category":"General Records Exemptions","date_decided":"2023-05-18","site_url":"/cases/2022%20IL%20App%20(1st)%20200547/","text_url":"/case-text/2022%20IL%20App%20(1st)%20200547.txt","full_text":" Digitally signed\n by Reporter of\n Decisions\n Reason: I attest\n Illinois Official Reports to the accuracy\n and integrity of\n this document\n Supreme Court Date: 2023.10.30\n 10:15:48 -05'00'\n\n\n\n Chapman v. Chicago Department of Finance, 2023 IL 128300\n\n\n\n\nCaption in Supreme MATT CHAPMAN, Appellee, v. THE CHICAGO DEPARTMENT\nCourt: OF FINANCE, Appellant.\n\n\n\nDocket No. 128300\n\n\n\nFiled May 18, 2023\n\n\n\nDecision Under Appeal from the Appellate Court for the First District; heard in that\nReview court on appeal from the Circuit Court of Cook County, the Hon.\n Sanjay T. Tailor, Judge, presiding.\n\n\n\nJudgment Judgments reversed.\n Cause remanded with directions.\n\n\nCounsel on Celia Meza, Corporation Counsel, of Chicago (Myriam Zreczny\nAppeal Kasper, Suzanne Loose, Ellen W. McLaughlin, and Elizabeth M.\n Tisher, Assistant Corporation Counsel, of counsel), for appellant.\n\n Matthew Topic, Josh Loevy, Merrick Wayne, and Shelley Geiszler, of\n Loevy & Loevy, of Chicago, for appellee.\n\f Justices JUSTICE HOLDER WHITE delivered the judgment of the court, with\n opinion.\n Chief Justice Theis and Justices Neville, Overstreet, Cunningham,\n Rochford, and O’Brien concurred in the judgment and opinion.\n\n\n\n OPINION\n\n¶1 Plaintiff, Matt Chapman, filed a request pursuant to the Freedom of Information Act\n (FOIA) (5 ILCS 140/1 et seq. (West 2018)), seeking certain information utilized by defendant,\n the Chicago Department of Finance. Defendant denied the request, identifying the requested\n information as exempt from disclosure under section 7(1)(o) of FOIA. Id. § 7(1)(o).\n¶2 Plaintiff filed a complaint, alleging defendant violated FOIA by failing to disclose the\n records and asking the Cook County circuit court to order their production. The court agreed\n with plaintiff and ordered defendant to produce the records. The First District affirmed. 2022\n IL App (1st) 200547, ¶ 1.\n¶3 Now on appeal, defendant argues (1) section 7(1)(o) of FOIA expressly exempts the\n requested records from disclosure and (2) it demonstrated clear and convincing evidence that\n disclosure would jeopardize the security of its system. We reverse and remand with directions.\n\n¶4 BACKGROUND\n¶5 In August 2018, plaintiff submitted a FOIA request to defendant for certain records\n pertaining to the Citation Administration and Adjudication System (CANVAS), developed by\n IBM for the City of Chicago in 2002 for the enforcement of parking, red-light, and speed-\n camera tickets. After a ticket has been issued, it is loaded into the CANVAS system, which\n defendant uses to issue notices and for payment purposes.\n¶6 Specifically, plaintiff sought an “index of the tables and columns within each table of\n CANVAS” and asked for the “column data type as well.” Further, plaintiff’s request stated the\n following:\n “Per the CANVAS specification, the database in question is Oracle, so the below SQL\n query will likely yield the records pursuant to this request:\n select utc.column_name as colname, uo.object_name as tablename, utc.data_type\n from user_objects uo\n join user_tab_columns utc on uo.object_name = utc.table_name where uo.object_type\n = ‘TABLE’ ”\n Plaintiff indicated the requested documents would be made available to the general public and\n that the request was not being made for commercial purposes.\n¶7 Defendant denied the request, stating the records were exempt from disclosure pursuant to\n section 7(1)(o) of FOIA (5 ILCS 140/7(1)(o) (West 2018)). Section 7(1)(o) exempts the\n following:\n “Administrative or technical information associated with automated data processing\n operations, including but not limited to software, operating protocols, computer\n\n\n -2-\n\f program abstracts, file layouts, source listings, object modules, load modules, user\n guides, documentation pertaining to all logical and physical design of computerized\n systems, employee manuals, and any other information that, if disclosed, would\n jeopardize the security of the system or its data or the security of materials exempt\n under this Section.” Id.\n Defendant stated the request for a copy of tables or columns within each table of CANVAS\n could, if disseminated, jeopardize the security of the systems of the City of Chicago.\n¶8 In November 2018, plaintiff filed suit, alleging his request concerned nonexempt public\n records and defendant had willfully and intentionally violated FOIA by failing to produce the\n requested records. Thereafter, plaintiff filed a motion for partial summary judgment, and\n defendant filed a cross-motion for summary judgment.\n¶9 In its cross-motion, defendant argued plaintiff’s broad and open-ended request would\n “provide a detailed roadmap of the entire CANVAS system to the public” and, if released,\n “would not only provide information about how the CANVAS system was designed but would\n also facilitate cyber-attacks.” The circuit court denied both motions.\n¶ 10 In January 2020, the circuit court held a trial on plaintiff’s complaint. Before the trial began,\n defendant argued the information plaintiff requested constituted a “file layout” or “source\n listing,” both of which are expressly exempt from disclosure under section 7(1)(o) without\n regard to whether disclosure would jeopardize the security of the system. The court disagreed\n “as a matter of law,” stating the phrase “if disclosed[,] would jeopardize [the] security of the\n system or its data or the security of the material[s] exempt under this [S]ection,” qualifies every\n term that precedes it, including “file layouts” and “source listings.” Thus, the only issue for\n trial was whether disclosure of the information would jeopardize the security of the system.\n¶ 11 On defendant’s behalf, Bruce Coffing testified he was the chief information security officer\n for the City of Chicago. He indicated his familiarity with the CANVAS system, which contains\n sensitive information pertinent to constituents who have received tickets relating to parking,\n speed-light cameras, red-light cameras, booting, and towing. Coffing stated that information\n includes, among other things, first and last names of the primary and secondary vehicle owners,\n driver’s license numbers, addresses, handicap-parking status, the ticket issuer, and payment\n method.\n¶ 12 Coffing testified he is responsible for protecting the CANVAS system from cyberattacks.\n One of the ways to defend against such attacks includes limiting the information known about\n a system, so that hackers have to be “more noisy” when attempting an attack and thereby\n alerting security defenses that an attack is underway. If an attack is conducted by someone\n with knowledge of the system, “their activity may blend in and look like normal activity in the\n system.” Coffing stated releasing the requested information would undermine the layer defense\n strategy by “providing more information for a threat actor to perform [reconnaissance] again\n to more precisely tailor their attack.”\n¶ 13 Coffing testified that plaintiff’s request concerned file layouts and source listings. He stated\n file layouts include “table names and column names,” which is “the information that the\n database management system uses to create the structure of the database.” “Source listings”\n include instructions to “the database management system on how to do something to setup the\n database, the tables, the columns within each of those tables and the data types that those\n columns represent.”\n\n -3-\n\f¶ 14 Coffing stated that, if a threat actor knew the file layouts or source listings, he or she could\n use that knowledge to “perform [reconnaissance] on a target or a system and in this case would\n use this information to more precisely craft their attacks, again to limit the noise that they\n would make to limit the likelihood of them being detected.”\n¶ 15 Coffing also testified releasing the information requested by plaintiff could facilitate a type\n of attack known as a structured query language (SQL) injection, which would force the system\n to do something it is not designed to do. In such an instance, the injection acts as “a window\n into the system and then it uses this vulnerability to attempt to make the system do something\n that the threat actor wants the system to do.” Coffing stated an SQL injection could be used\n against the CANVAS system to gain access and modify information, such as payment on a\n ticket, or delete data to make the system unusable.\n¶ 16 On cross-examination, Coffing acknowledged plaintiff’s FOIA request did not seek actual\n data, such as a person’s driver’s license number, but instead sought a listing of the tables in the\n CANVAS database and the fields and columns within those tables. However, Coffing\n explained that disclosure of the requested records would “disclose how the database\n management system constructs the database that contains the data used, stored and processed\n by the CANVAS system.”\n¶ 17 When asked by the circuit court to assume the general public knows what information is\n being collected, e.g., first and last names, citation number, vehicle information, and date and\n type of citations, Coffing testified that knowing the specific field name could allow someone\n to precisely craft an attack to make less noise and go undetected. For example, Coffing stated\n a field name could be “L underscore name” or “last underscore name,” but not knowing which\n one could lead to inaccurate guesses and thereby alert the system that a threat actor is in the\n environment.\n¶ 18 In plaintiff’s case, Thomas Ptacek testified he worked in the field of information and\n software security. Describing himself as a “vulnerability researcher,” he acknowledged he\n hacks systems for a living. Ptacek understood plaintiff’s FOIA request as seeking “the schema\n of the database that backs the CANVAS application, the tables and the columns of those\n tables.”\n¶ 19 Ptacek described “schema” as a term of art referring to “all of the fields and the databases\n that sit behind these applications.” According to Ptacek, “schema information would be of\n marginal value to an attacker.” Moreover, disclosing the requested records would not produce\n the source code for the CANVAS system, which would provide a collection of instructions\n that tells the CANVAS application how to function.\n¶ 20 Ptacek could not think of a way in which publicly “disclosing the schema would jeopardize\n the security” of a system or make it easier to carry out an SQL injection attack. Instead, he\n stated one of the first things he would get from an SQL injection attack would be the schema\n itself. Ptacek did testify that, if a hacker breached a database, knowledge of the schema would\n be “of value in that it would allow [the hacker] to select” the application to target. However,\n he stated that, if the schema is publicly available, it is not considered a vulnerability to the\n system. He stated “schemas are not file layouts” or source listings.\n¶ 21 On cross-examination, Ptacek testified he has never worked with the CANVAS system and\n he did not know the source code, architecture, or security configurations of the system. He\n stated that having the schema has some value to the hacker in helping to plan for an attack. For\n\n -4-\n\f example, if Ptacek wanted to target Social Security numbers, having the schema would help\n “isolate the systems” that contained Social Security information so he would not “have to take\n the time to attack lots of other applications.” But he stated knowing the schema would not\n prevent noise during a hacking attempt, as opposed to knowing the source code, which would\n help him be “substantially less noisy.”\n¶ 22 Following closing arguments, the circuit court found defendant had not met its burden of\n proof under section 7(1)(o) of FOIA. The court found persuasive Ptacek’s testimony that\n knowledge of the schema would not in any way provide a threat actor an advantage in attacking\n a system like CANVAS. The court entered judgment in favor of plaintiff and against defendant.\n The court also ordered defendant to produce the requested records by February 10, 2020.\n Following defendant’s posttrial motion, the court stayed its order to produce the requested\n records pending the outcome of an appeal.\n¶ 23 On appeal, defendant made no argument that the requested information constituted a\n “source listing.” Instead, defendant maintained the requested information was exempt from\n disclosure because it constituted a “ ‘file layout’ ” and its dissemination “ ‘would jeopardize’ ”\n the security of the CANVAS system and database. 2022 IL App (1st) 200547, ¶ 1. The First\n District disagreed and affirmed. First, without determining whether the information plaintiff\n requested was a “ ‘file layout’ ” or “ ‘any other information,’ ” the court found that, under the\n plain language of section 7(1)(o), the reasonable meaning of “ ‘if disclosed, would\n jeopardize’ ” applies to every item listed, not only to the catchall phrase of “ ‘and any other\n information.’ ” Id. ¶ 32. Second, the First District found the circuit court’s finding that\n defendant failed to demonstrate by clear and convincing evidence that the exemption from\n disclosure provided in section 7(1)(o) applied to plaintiff’s FOIA request was not against the\n manifest weight of the evidence. Id. ¶ 38. Thus, the court held defendant must provide the\n information plaintiff requested because the information was not exempt from disclosure under\n section 7(1)(o) of FOIA. Id. ¶ 42.\n¶ 24 In March 2022, defendant petitioned this court for leave to appeal, and we allowed that\n petition. Ill. S. Ct. R. 315 (eff. Oct. 1, 2021).\n\n¶ 25 ANALYSIS\n¶ 26 Defendant raises two issues on appeal. First, defendant argues the plain language of section\n 7(1)(o) of FOIA expressly exempts the records plaintiff requested from disclosure. Second,\n defendant argues that section 7(1)(o) requires a public body to show only a possibility of harm\n to a data system’s security and that it showed that disclosure of the requested records would\n jeopardize CANVAS’s security.\n\n¶ 27 I. Standard of Review\n¶ 28 The first issue requires us to construe section 7(1)(o) of FOIA. Issues of statutory\n interpretation are reviewed de novo. Rushton v. Department of Corrections, 2019 IL 124552,\n ¶ 13. “ ‘The fundamental rule of statutory interpretation is to ascertain and give effect to the\n legislature’s intent, and the best indicator of that intent is the statutory language, given its plain\n and ordinary meaning.’ ” International Ass’n of Fire Fighters, Local 50 v. City of Peoria, 2022\n IL 127040, ¶ 12 (quoting Dew-Becker v. Wu, 2020 IL 124472, ¶ 12). In interpreting a statute,\n this “court may consider the reason for the law, the problems sought to be remedied, the\n\n -5-\n\f purposes to be achieved, and the consequences of construing the statute one way or another.”\n In re Appointment of Special Prosecutor, 2019 IL 122949, ¶ 23.\n¶ 29 A statute must be viewed as a whole, and “this court construes words and phrases not in\n isolation but relative to other pertinent statutory provisions.” In re Julie M., 2021 IL 125768,\n ¶ 27. Moreover, statutory provisions should be read so that no term is rendered superfluous or\n meaningless. Id. “When the plain language of the statute is clear and unambiguous, the\n legislative intent that is discernible from this language must prevail, and no resort to other\n interpretative aids is necessary.” In re Marriage of Kates, 198 Ill. 2d 156, 163 (2001).\n\n¶ 30 II. The Public Policy Behind FOIA\n¶ 31 In conducting our review, we are mindful that, pursuant to FOIA, “public records are\n presumed to be open and accessible.” Illinois Education Ass’n v. Illinois State Board of\n Education, 204 Ill. 2d 456, 462 (2003) (citing Lieber v. Board of Trustees of Southern Illinois\n University, 176 Ill. 2d 401, 407 (1997)). Section 1 of FOIA prescribes the public policy of\n Illinois and legislative intent of FOIA. 5 ILCS 140/1 (West 2018). Section 1 states, in part, as\n follows:\n “The General Assembly hereby declares that it is the public policy of the State of\n Illinois that access by all persons to public records promotes the transparency and\n accountability of public bodies at all levels of government. It is a fundamental\n obligation of government to operate openly and provide public records as expediently\n and efficiently as possible in compliance with this Act.\n This Act is not intended to cause an unwarranted invasion of personal privacy, nor\n to allow the requests of a commercial enterprise to unduly burden public resources, or\n to disrupt the duly-undertaken work of any public body independent of the fulfillment\n of any of the fore-mentioned rights of the people to access to information.” Id.\n¶ 32 “All records in the custody or possession of a public body are presumed to be open to\n inspection or copying.” Id. § 1.2. A public body must comply with a proper request for\n information unless one of the statutory exemptions in section 7 applies. Lieber, 176 Ill. 2d at\n 407. This court has noted these “exemptions ‘are to be read narrowly.’ ” Mancini Law Group,\n P.C. v. Schaumburg Police Department, 2021 IL 126675, ¶ 16 (quoting Lieber, 176 Ill. 2d at\n 407). “In the event a public body asserts that a record is exempt from such disclosure, the\n public body bears the burden of proving by clear and convincing evidence that the record is\n exempt.” Id.; 5 ILCS 140/1.2 (West 2018).\n\n¶ 33 III. Section 7(1)(o) and File Layouts\n¶ 34 Section 7 of FOIA sets forth a series of exemptions to disclosure and provides, in relevant\n part:\n “(1) When a request is made to inspect or copy a public record that contains\n information that is exempt from disclosure under this Section, but also contains\n information that is not exempt from disclosure, the public body may elect to redact the\n information that is exempt. The public body shall make the remaining information\n available for inspection and copying. Subject to this requirement, the following shall\n be exempt from inspection and copying:\n ***\n\n -6-\n\f (o) Administrative or technical information associated with automated data\n processing operations, including but not limited to software, operating protocols,\n computer program abstracts, file layouts, source listings, object modules, load\n modules, user guides, documentation pertaining to all logical and physical design\n of computerized systems, employee manuals, and any other information that, if\n disclosed, would jeopardize the security of the system or its data or the security of\n materials exempt under this Section.” 5 ILCS 140/7(1)(o) (West 2018).\n¶ 35 Defendant argues the plain language of section 7(1)(o) establishes a per se exemption for\n file layouts. We agree.\n¶ 36 We begin by noting this court has found a per se rule applies to most of the exemptions set\n forth in section 7. Mancini, 2021 IL 126675, ¶ 30. Thus, “[w]here the public body claims that\n a requested document falls within one of these specifically enumerated categories and is able\n to prove that claim, no further inquiry by the court is necessary.” Lieber, 176 Ill. 2d at 408.\n¶ 37 The exemption at issue in section 7(1)(o) is narrow in its focus—dealing with\n administrative or technical information associated with automated data processing operations.\n The statute specifically lists 10 items that are included within that focus, including file layouts.\n While the phrase “including but not limited to” indicates the list that follows is illustrative and\n not exhaustive (People v. Perry, 224 Ill. 2d 312, 328 (2007)), the inclusion of these 10 specific\n items evinces the legislature’s intent that they be expressly exempt from disclosure, i.e., the\n harm that would follow from disclosure of the listed items is presumed. Had the General\n Assembly intended to require the government agency to show disclosure of information would\n jeopardize the security of its system, the list of specific items would have been unnecessary.\n¶ 38 In addition to listing the specific categories of information that are exempt, the legislature\n also included the catchall category of “any other information that, if disclosed, would\n jeopardize the security of the system or its data or the security of materials exempt under this\n Section.” 5 ILCS 140/7(1)(o) (West 2018). The catchall phrase simply shows the legislature\n understood it could not specifically list every item that might fall within the exemption’s scope\n and allowed for the protection of the system should it be proved that disclosure of a nonlisted\n item, i.e., any other information, would jeopardize its security. See People v. Newton, 2018 IL\n 122958, ¶ 17 (finding the statutory catchall showed the legislature’s recognition that it would\n not be possible to specifically list all places used primarily for religious worship).\n¶ 39 In its analysis, the appellate court did not address the entirety of section 7(1)(o)’s\n exemption. However, a plain reading of the exemption as a whole confirms our conclusion that\n file layouts are expressly exempt. The last part of section 7(1)(o) mentions “materials exempt\n under this Section,” thereby indicating the legislature’s intent that the previously listed items\n are indeed exempt. To find otherwise would render the phrase “materials exempt under this\n Section” superfluous. See Slepicka v. Illinois Department of Public Health, 2014 IL 116927,\n ¶ 14 (“Each word, clause and sentence of a statute must be given a reasonable construction, if\n possible, and should not be rendered superfluous.”).\n¶ 40 With the foregoing in mind, the reasonable, commonsense interpretation of section 7(1)(o)\n that gives meaning to the listed items, the catchall, and the entire exemption as a whole leads\n to the conclusion that file layouts are exempt from disclosure. While it is true that, under FOIA,\n public records are presumed to be open and accessible, the legislature has specifically provided\n for a narrow exemption with respect to administrative or technical information associated with\n\n\n -7-\n\f automated data processing operations. The exemption in section 7(1)(o) is focused on the\n security of the government body’s data system, and reading the exemption to require a hearing\n to determine whether disclosure would jeopardize the security of that system every time a file\n layout is requested would only weaken the specific exemption.\n¶ 41 We note section 5 of FOIA requires a public body to “maintain and make available for\n inspection and copying a reasonably current list of all types or categories of records under its\n control,” which “shall be reasonably detailed in order to aid persons in obtaining access to\n public records pursuant to this Act.” 5 ILCS 140/5 (West 2018). Thus, section 5 provides the\n public with knowledge of what records are available and what can be obtained. However, the\n purpose of FOIA is not to put the security of the government’s automated data processing\n operations at risk of unnecessary harm, and section 7(1)(o) provides a narrow and reasonable\n exemption to protect those operations, especially from the harm threatened by cyberattacks.\n Accordingly, we hold file layouts are per se exempt from disclosure.\n\n¶ 42 IV. Plaintiff’s Requested Records\n¶ 43 Having found that file layouts are expressly exempt from disclosure under section 7(1)(o)\n without a showing that disclosure would jeopardize the security of the system, we need not\n address defendant’s second issue. Instead, the question now becomes whether the records\n requested by plaintiff constitute file layouts. Plaintiff argues his requested “schema” does not\n fall within the definition of a file layout. Defendant, however, suggests dictionary definitions\n establish the requested records fall under the exemption. We agree with defendant.\n¶ 44 File layouts are not defined in the statute. In such an instance, “this court has held it is\n appropriate to refer to a dictionary to ascertain the meaning of otherwise undefined words or\n phrases.” Skaperdas v. Country Casualty Insurance Co., 2015 IL 117021, ¶ 18 (citing Lacey\n v. Village of Palatine, 232 Ill. 2d 349, 363 (2009)); see also Rosenbach v. Six Flags\n Entertainment Corp., 2019 IL 123186, ¶ 32 (stating this court may consult dictionaries to\n ascertain the plain and ordinary meaning of an undefined statutory term).\n¶ 45 In his FOIA request, plaintiff sought an “index of the tables and columns within each table\n of CANVAS” and asked for the “column data type as well.” “File layout” has been defined as\n the “description of the arrangement of the data in a file.” McGraw-Hill Dictionary of Scientific\n & Technical Terms (6th ed. 2003), available at https://encyclopedia2.thefreedictionary.com/\n file+layout (last visited Apr. 10, 2023) [https://perma.cc/7JRF-MB62]. We find this definition\n encompasses the records requested by plaintiff.\n¶ 46 Plaintiff, however, argues that the records he requested constituted “database schema” and\n not file layouts. “Schema” is defined as “a structured framework or plan: outline.” Merriam-\n Webster Online Dictionary, https://www.merriam-webster.com/dictionary/schema (last\n visited Apr. 11, 2023) [https://perma.cc/JU96-57T7]. Considering the definitions of both “file\n layout” and “schema,” we find a difference in name only. Just as a file layout is the\n arrangement of data in a file, a schema is the framework or outline of a database.\n¶ 47 As we have found the records requested by plaintiff are file layouts within the meaning of\n section 7(1)(o) of FOIA, those records are exempt from disclosure. Accordingly, the judgments\n of the circuit court and the appellate court are hereby reversed. We remand the cause to the\n circuit court for entry of judgment in favor of defendant and against plaintiff.\n\n\n\n -8-\n\f¶ 48 CONCLUSION\n¶ 49 For the foregoing reasons, we reverse the judgments of the circuit court and the appellate\n court and remand to the circuit court with directions to enter judgment in favor of defendant.\n\n¶ 50 Judgments reversed.\n¶ 51 Cause remanded with directions.\n\n\n\n\n -9-\n\f"} {"dedup_key":"2022 IL App (1st) 201262-U","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (1st) 201262-U","case_name":"Chicago Sun-Times v. Chicago Police Department","court_level":"Appellate","appellate_district":"1st","year":2022,"county":"Cook","appellate_docket":"1-20-1262","circuit_docket":"19 CH 10513","published":0,"authoring_justice":"Delort","statute":["FOIA"],"exemptions_cited":[],"public_body":"Chicago Police Department","requesting_party":"Chicago Sun-Times","disposition":"reversed_and_remanded","relevance":"relevant","summary_source":"syllabus","summary":"The circuit court erred in granting summary judgment to the plaintiff without conducting an in camera review of the requested records. The appellate court remanded the case with instructions for the circuit court to perform an in camera review to determine which documents were protected from disclosure by prior court orders.","best_text_source":"Court Opinions - FOIA/Chicago Sun-Times v. Chicago Police Department, 2022 IL App (1st) 201262-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:40.170416","site_category":"Search & Production","date_decided":"2022-01-21","site_url":"/cases/2022%20IL%20App%20(1st)%20201262-U/","text_url":"/case-text/2022%20IL%20App%20(1st)%20201262-U.txt","full_text":" 2022 IL App (1st) 201262-U\n FIFTH DIVISION\n January 21, 2022\n\n No. 1-20-1262\n\n\n NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent\n by any party except in the limited circumstances allowed under Rule 23(e)(1).\n\n\n\n IN THE\n APPELLATE COURT OF ILLINOIS\n FIRST DISTRICT\n ______________________________________________________________________________\n CHICAGO SUN-TIMES, ) Appeal from the Circuit Court\n ) of Cook County.\n Plaintiff-Appellee, )\n )\n v. ) No. 19 CH 10513\n )\n CHICAGO POLICE DEPARTMENT, )\n ) Honorable Sanjay Tailor,\n Defendant-Appellant. ) Judge, presiding.\n\n\n\n PRESIDING JUSTICE DELORT delivered the judgment of the court.\n Justices Hoffman and Cunningham in the judgment.\n\n ORDER\n\n¶1 Held: In this Freedom of Information Act case, the circuit court erred when it granted\n summary judgment in favor of the plaintiff and ordered the defendant to release the records\n in full, because an in camera review of the documents was necessary to determine which,\n if any, were protected from disclosure under a prior court order. Reversed and remanded\n with instructions.\n\n¶2 The defendant, Chicago Police Department (CPD), appeals an order of the circuit court of\n\nCook County which required it to turn over certain records to the plaintiff, Chicago Sun-Times,\n\f1-20-1262\n\nunder the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2018)). We find that\n\nthe circuit court erred by granting summary judgment to the Sun-Times before first conducting an\n\nin camera review of the requested documents to determine which, if any, were protected from\n\ndisclosure by a prior court order. We reverse and remand for further proceedings with instructions.\n\n¶3 BACKGROUND\n\n¶4 This case had its genesis in 2004, when Richard Vanecko, a nephew of then-Mayor Richard\n\nM. Daley of Chicago, assaulted David Koschman on Division Street in Chicago. Koschman fell\n\nbackwards, struck his head, and eventually died from his injuries. A special prosecutor was\n\nappointed to supervise the investigation and eventual prosecution of Vanecko, and a grand jury\n\nwas empaneled. The case generated considerable interest by news media outlets and a host of\n\nFOIA requests for governmental records relating to the investigation. In earlier litigation, our\n\nsupreme court held that the Better Government Association could not obtain materials generated\n\nin course of the special prosecutor’s grand jury investigation of the assault under FOIA, and that\n\nthe City of Chicago did not improperly withhold requested records under FOIA, because they were\n\nsubject to protective orders issued in 2012 and 2014 by the court overseeing the grand jury. In re\n\nAppointment of Special Prosecutor, 2019 IL 122949, ¶ 12. These orders are still in force.\n\n¶5 On February 21, 2019, after the supreme court issued its opinion in Special Prosecutor, the\n\nSun-Times submitted a terse, but broad, new FOIA request to CPD, seeking “all records [the Police\n\nDepartment] has regarding the death of David Koschman.” On June 14, 2019, well beyond both\n\nthe original five-day period under FOIA for responding and the additional five-day extension it\n\ninvoked, CPD denied the request, stating that it had already provided the Sun-Times with “all\n\navailable non-exempt records responsive to [the] request” in its answers to 18 previous Sun-Times\n\nFOIA requests, which were specified by their file numbers. Shortly thereafter, however, on July\n\n -2-\n\f1-20-1262\n\n25, CPD sent the Sun-Times a “supplemental response” in which it produced 73 pages of additional\n\nrecords which had been withheld in response to an earlier Sun-Times FOIA request, but which\n\nCPD was now releasing with redactions.\n\n¶6 The Sun-Times asked the office of the Attorney General’s Public Access Counselor (PAC)\n\nto review CPD’s denial of its request. The PAC directed CPD to explain its withholding of the\n\nrecords. CPD responded, asserting that because the grand jury protective order prohibited\n\ndisclosure of the records it withheld, it was not required to produce them under FOIA. See Special\n\nProsecutor, 2019 IL 122949, ¶ 29. In its response to the PAC, CPD also stated that the records\n\nwere exempt from disclosure under section 7(1)(a) of FOIA. 1 The PAC did not take any further\n\naction regarding the Sun-Times’ request.\n\n¶7 On September 11, 2019, the Sun-Times filed this lawsuit in the circuit court of Cook\n\nCounty. The complaint is unusually pleaded in that although it contains a set of allegations\n\ncommon to all counts, its splits the Sun-Times’ single claim for CPD’s violation of FOIA into\n\nthree separate counts. Each count is but a few lines long, and no count contains its own prayer for\n\nrelief. Count I is entitled “Failure to Produce Records” and alleges that the requested records were\n\nnon-exempt and that CPD violated FOIA by not producing them. Count II, entitled “Failure to\n\n\n\n 1\n Section 7(1)(a) of FOIA (5 ILCS 140/7(1)(a) (West 2018)) exempts “[i]nformation\nspecifically prohibited from disclosure by federal or State law” from disclosure under FOIA. Both\nparties have mischaracterized the holding of Special Prosecutor court by framing the issue of\nwhether the grand jury protective orders shield documents from disclosure under a section 7(1)(a)\nrubric. The Special Prosecutor court did not rely on section 7(1)(a) as a basis to not hold that the\ngrand jury records subject to the protective order were exempt from disclosure. Instead, it held that\n“out of respect for the judicial process,” a public body was required to obey a court order\nprohibiting disclosure of records, notwithstanding any contrary command of FOIA. See id. ¶ 68.\nEven so, the issue of a section 7(1)(a) exemption remains relevant as to whether any records might\nadditionally be shielded from disclosure under section 112-6 of the Code of Criminal Procedure\nof 1963 (725 ILCS 5/112-6 (West 2018)).\n\n -3-\n\f1-20-1262\n\nPerform an Adequate Search,” states that CPD has a burden under FOIA to demonstrate why the\n\nrequested records are exempt from disclosure and that CPD “has failed to come forward with\n\nsufficient evidence to carry this burden.” Count III, entitled “Willful and Intentional Violation of\n\nFOIA,” simply alleges that the requested records are non-exempt and that CPD willfully violated\n\nFOIA by not producing them. The common prayer for relief for all three counts requests that the\n\ncourt declare that the records are non-exempt, declare that CPD violated FOIA by not releasing\n\nthem, enjoin CPD from withholding them, and award attorney fees and costs.\n\n¶8 CPD answered the complaint, generally denying the key allegation that it improperly\n\nwithheld records, and raising a pleading issue which it improperly characterized as an “affirmative\n\ndefense”—that the complaint did not actually allege that the Sun-Times was denied access to the\n\nrecords. It did not assert any affirmative defense that the records were protected from disclosure\n\nby a court order—either the protective order at issue in Special Prosecutor or the later protective\n\norder, discussed below, stemming from the City of Chicago’s office of Inspector General (OIG)\n\ninvestigation—or by any specific FOIA exemption. It also did not assert any affirmative defense\n\nthat: (1) the Sun-Times’ request was unduly burdensome under section 3(d) of FOIA; (2) the\n\nrequest was duplicative of prior requests; or (3) that the case was moot. However, the complaint\n\nand answer did frequently reference the Special Prosecutor protective order. Additionally, during\n\nan argument on a motion, the circuit court specifically asked counsel for the Sun-Times if he\n\n“concede[d]” that CPD “had raised a [section] 7(1)(a) exemption,” and counsel responded in the\n\naffirmative.\n\n¶9 The Sun-Times then filed what it captioned as a motion “for partial summary judgment\n\nand for FOIA Section 11(e) Index.” The motion turned the tables on CPD, taking the position that\n\nin response to the motion, CPD would be required to produce clear and convincing evidence that\n\n\n -4-\n\f1-20-1262\n\nall of the withheld records were exempt from disclosure. The first section of the motion—the\n\nmotion for partial summary judgment—claimed that “[b]ecause [the] Sun-Times is under no\n\nobligation to disprove [CPD’s] allegations, Sun-Times will address [CPD’s] evidence and\n\narguments once they are provided in response to this motion.” The motion was not supported by\n\nany affidavit and included only one exhibit: a copy of the cover letter to CPD’s July 25, 2019\n\nsupplemental response to the Sun-Times. At oral argument, counsel for the Sun-Times explained\n\nthat it labeled the motion as one for “partial” summary judgment because it only sought an order\n\nreleasing the records and did not seek an award of attorney fees or costs under section 11(i) of\n\nFOIA (5 ILCS 140/11(i) (West 2018)).\n\n¶ 10 The motion also contained a second section, in which the Sun-Times sought an index to\n\nthe withheld records pursuant to section 11(e) of FOIA (5 ILCS 140/11(e) (West 2018)). This\n\nsection of the motion specifically quoted section 11(e) of FOIA, which provides that on motion of\n\na FOIA plaintiff, before or after an in camera inspection of the withheld records, the court can\n\norder the public body to provide an index to the withheld records, including a description of the\n\nnature or contents of each document withheld, and a statement of the FOIA exemptions claimed\n\nfor each withheld document.\n\n¶ 11 In response, CPD filed a single pleading which functioned both as its response to the Sun-\n\nTimes’ motion and its own cross-motion for (full, not partial) summary judgment. CPD argued\n\nthat the case was moot because it had provided the Sun-Times—in response to 22 prior requests\n\nover the course of 9 years—with all the records responsive to the request, less those held to be\n\nexempt in Special Prosecutor. CPD also argued that it was “not clear” on what the Sun-Times was\n\nseeking in light of the 22 prior productions, and that the Sun-Times was not entitled to an index of\n\nwithheld records because there was a “lack of clarity” as to what the Sun-Times sought. CPD’s\n\n\n -5-\n\f1-20-1262\n\nmotion was supported by the affidavit of the commanding officer of its FOIA unit, stating inter\n\nalia that CPD gave the Sun-Times the supplemental records on July 25, 2019 “in an abundance of\n\ncaution” because it was uncertain whether those particular records had been provided in response\n\nto one of the Sun-Times’ earlier requests. It also claimed that complying with the request would\n\nbe unduly burdensome under section 3(d) of FOIA (5 ILCS 140/3(d) (West 2018)).\n\n¶ 12 In reply, the Sun-Times argued that CPD had not met its burden to show that the records\n\nwere non-exempt. In particular, it stated that it “crafted” its request in compliance with the grand\n\njury protective order, in that it did not even mention grand jury records, and the “records [were]\n\nrequested in a way that does not identify them as connected to the grand jury.” The Sun-Times\n\nalso asserted that, under section 3(d) of FOIA (5 ILCS 140/3(d) (West 2018)), CPD had forfeited\n\nany argument that complying with the request would be unduly burdensome, because it failed to\n\nrespond to the request in a timely manner in the first instance. The Sun-Times reiterated its request\n\nfor an index to the withheld records, arguing that such an index would “help[ ] the court[ ] reach a\n\nproper conclusion on whether the government is improperly withholding records” and that “[t]his\n\nis the exact type of case where an index would be the most helpful.” The Sun-Times’ reply was\n\nalso supported by an affidavit of its reporter stating that he wrote the FOIA request in accordance\n\nwith the grand jury protective order, that CPD admitted in its cross-motion that it possessed more\n\nrecords which it had not produced, and that an index would enable him to have a “full\n\nunderstanding of what is still missing.”\n\n¶ 13 In further reply, CPD stated it was still confused regarding what the Sun-Times was\n\nseeking, and that it need not provide an index because it had already provided an “abundance” of\n\nrecords, and that it “did not know what additional records” it was being asked to provide except\n\nthose held to be non-disclosable under Special Prosecutor. It also asserted that the FOIA request\n\n\n -6-\n\f1-20-1262\n\nwas improperly seeking records which would enable the Sun-Times to reverse engineer what\n\noccurred before the grand jury.\n\n¶ 14 On June 11, 2020, the circuit court issued an order on the cross-motions. The court found\n\nthat: (1) providing an index to the withheld records was mandatory under the facts presented; (2)\n\nthe FOIA request “clearly identifies the records it seeks”; and (3) that the record suggested that\n\nthere could be additional records not disclosed, as exhibited by the 73 pages CPD provided in its\n\nsupplemental response. Accordingly, the court ordered CPD to produce an index in 21 days,\n\nincluding therein a column, indicating whether CPD previously provided any withheld or redacted\n\nrecords to the Sun-Times in response to one of its earlier requests. Further, the court set a briefing\n\nschedule to commence 21 days after CPD provided the index, under which the Sun-Times was\n\n“ordered” to file a sur-reply addressing CPD’s “new argument” that providing certain records\n\nwould enable it to reverse engineer what occurred before the grand jury, after which CPD was\n\nallowed to file a sur-reply brief of its own. The court also found that while CPD claimed that the\n\nSun-Times’ FOIA request was repetitive and burdensome, it was not clear what specific FOIA\n\nexemption it was invoking in that respect. If it was making such an assertion, then CPD was\n\nordered to expressly state what exemption it was relying on. The court did not set a deadline or\n\nformat for CPD to make that disclosure. The June 11 order did not state that the court was granting\n\nor denying any particular motion then pending before it.\n\n¶ 15 CPD then moved for an extension of time to prepare the index and asked the circuit court\n\nto inspect a portion of the index in camera. Explaining its in camera inspection request, CPD\n\nindicated that “even to list” the descriptions of the documents in the index would violate the grand\n\njury protective order. CPD also asserted, for the first time, that the judge supervising the grand\n\njury had issued an additional protective order in 2015, under seal, “specifically prohibiting the\n\n\n -7-\n\f1-20-1262\n\nrelease of certain specifically enumerated documents gathered as part” of an internal OIG\n\ninvestigation. CPD asserted the OIG protective order as an additional reason for requesting to\n\nsubmit portions of the index in camera, citing Special Prosecutor in support of its position.\n\nBecause this protective order was itself under seal, CPD did not provide a copy of it as an exhibit\n\nto its reply, but merely asserted that it existed. At oral argument, counsel for CPD asserted that it\n\ngave a copy of the sealed OIG order to the circuit court under seal for its in camera review, but\n\nthe record before this court contains no indication of that transmission.\n\n¶ 16 During briefing on the motion for extension of time, the Sun-Times again requested that\n\nthe circuit court “first rule” on whether the records were exempt under section 7(1)(a) of FOIA (5\n\nILCS 140/7(1)(a) (West 2018)), which exempts disclosure of “[i]nformation specifically\n\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\n\nor State law.”\n\n¶ 17 On August 28, 2020, the circuit court held a hearing by videoconferencing software. There\n\nwas considerable discussion regarding whether CPD had forfeited its argument that the records, or\n\nan index thereto, were prohibited from disclosure on the basis of the grand jury protective orders\n\nbecause it had failed to plead it as an affirmative defense. The court stated that even assuming that\n\nCPD had not forfeited that defense, it was without merit because the FOIA request in question\n\n“does not make any mention of the Grand Jury.” The court further stated that “[b]ecause the City\n\nhas not met its burden to show that Section 7(1)(a) exempts the records sought in the Plaintiff’s\n\nFOIA request, the requirement of an index is now moot.” Accordingly, the court entered an order\n\nstating:\n\n “1. Plaintiff’s Motion for Partial Summary Judgment is hereby granted.\n\n 2. Defendant’s cross-motion for summary judgment is hereby denied.\n\n -8-\n\f1-20-1262\n\n 3. Defendant shall produce the requested records to Plaintiff on or before September\n\n 28, 2020.\n\n 4. Case continued for status on compliance for October 7, 2020 at 9:30 a.m.”\n\n¶ 18 CPD moved to reconsider that order. On October 5, the circuit court denied that motion\n\nwithout further briefing “for the same reasons stated on the record on August 28, 2020” and\n\nordered CPD to produce the requested records to the Sun-Times by October 26, 2020. CPD then\n\nmoved for a finding there was no just cause to delay enforcement or appeal of the August 28, 2020\n\norder pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), so as to make that order\n\nimmediately appealable. On October 27, the court granted that motion, making the appropriate\n\nfinding, and stayed production of documents pending appeal. This timely appeal followed.\n\n¶ 19 ANALYSIS\n\n¶ 20 On appeal, CPD argues that the circuit court erred in ordering it to release documents\n\nresponsive to the Sun-Times’ FOIA request because: (1) the court did so without first reviewing\n\nthe documents in camera to determine whether any were subject to the grand jury protective\n\norders; and (2) even if CPD had forfeited its ability to invoke any FOIA exemptions by not filing\n\nappropriate affirmative defenses, the result reached below is untenable because it would still place\n\nCPD in the position of complying with one court order by violating a second court order.\n\n¶ 21 Before addressing the merits, we pause to examine our jurisdiction in light of the unusual\n\nprocedural posture in which this case reaches us. We have an obligation to review\n\nour jurisdiction on our own even if no party raises the issue. In re Marriage of Baumgartner, 2014\n\nIL App (1st) 120552, ¶ 33.\n\n¶ 22 As noted above, the Sun-Times filed a joint motion for partial summary judgment and for\n\na FOIA index. The Sun-Times characterized its motion as being one for “partial” summary\n\n -9-\n\f1-20-1262\n\njudgment because it did not address its claim for an award of attorney fees and costs, preferring to\n\ndefer that claim until the circuit court determined that it was actually entitled to production of\n\ncertain records. See 5 ILCS 140/11(i) (West 2018) (providing that the court shall award attorney\n\nfees and costs to a requestor who “prevails” in a FOIA lawsuit, and in determining the amount,\n\nconsidering “the degree to which the relief obtained relates to the relief sought”).\n\n¶ 23 A circuit court may make a Rule 304(a) finding in cases involving multiple claims or\n\nparties: “If multiple parties or multiple claims for relief are involved in an action, an appeal may\n\nbe taken from a final judgment as to one or more but fewer than all of the parties or claims only if\n\nthe [circuit] court has made an express written finding that there is no just reason for delaying\n\neither enforcement or appeal or both.” Ill. Sup. Ct. R. 304(a) (eff. Mar. 8, 2016). Here, the fact that\n\nthe Sun-Times pleaded its single FOIA claim in three separate counts does not matter. See\n\nBlumenthal v. Brewer, 2016 IL 118781, ¶ 26 (“these counts merely advanced different analytical\n\napproaches for determining how the home or its proceeds should be allocated between the parties.\n\nThey were, in effect, different iterations of the very same claim.”). Although the circuit court did\n\nnot address the Sun-Times’ claim for attorney fees and costs under FOIA, the court did make an\n\nappropriate finding under Rule 304(a) which renders the order granting partial summary judgment\n\nappealable. See Hamer v. Lentz, 155 Ill. App. 3d 692, 695 (1987) (order requiring release of\n\ndocuments under FOIA was not appealable because a FOIA attorney fee and cost request was a\n\n“claim” which rendered a disclosure order non-appealable without a Rule 304(a) finding).\n\nTherefore, we have jurisdiction under Rule 304(a). Ill. Sup. Ct. R. 304(a) (eff. Mar. 8, 2016). We\n\nalso have jurisdiction under Rule 307(a)(1), as the order commanding CPD to turn over the records\n\nto the Sun-Times under FOIA was functionally an injunction. Ill. S. Ct. R. 307(a)(1) (eff. Nov. 1,\n\n2017).\n\n\n - 10 -\n\f1-20-1262\n\n¶ 24 Having found jurisdiction, we next address the merits of this appeal. Summary judgment\n\nis appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if\n\nany, show that there is no genuine issue as to any material fact and that the moving party is entitled\n\nto a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2018). Summary judgment is a\n\ndrastic measure and should only be granted when the moving party’s right to judgment is “clear\n\nand free from doubt.” Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102\n\n(1992). Where a reasonable person could draw divergent inferences from undisputed facts,\n\nsummary judgment should be denied. Id. We review a trial court’s entry of summary judgment de\n\nnovo. Id.\n\n¶ 25 Under FOIA, public records are presumed to be open and accessible. Illinois Education\n\nAss’n v. Illinois State Board of Education, 204 Ill. 2d 456, 462-63 (2003) (citing Lieber v. Board\n\nof Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997)). In a normal civil case, the\n\nplaintiff has the burden of proof. Thacker v. UNR Industries, Inc., 151 Ill. 2d 343, 354 (1992).\n\nFOIA cases are an exception to that general rule. In a FOIA case, the defendant public body “has\n\nthe burden of proving by clear and convincing evidence that [the records are] exempt.” 5 ILCS\n\n140/1.2 (West 2018). To meet that high burden, it must “ ‘provide a detailed justification for its\n\nclaim of exemption, addressing the requested documents specifically and in a manner allowing for\n\nadequate adversary testing.’ ” (Emphasis in original.) Illinois Education Ass’n, 204 Ill. 2d at 464\n\n(quoting Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530, 537 (1989)). Likewise, as in any\n\nother civil lawsuit, the public body must answer and plead correctly as required by the Illinois\n\nCode of Civil Procedure and the Supreme Court Rules, and present evidence to support its\n\ndefenses, lest its defenses be forfeited.\n\n\n\n\n - 11 -\n\f1-20-1262\n\n¶ 26 It appears that the circuit court granted summary judgment to the Sun-Times and ordered\n\nthe release of the records in full based largely, but not completely, on CPD’s procedural missteps\n\nin failing to plead any relevant affirmative defenses. Among other things, a public body claiming\n\nthat it withheld records properly because of an applicable FOIA exemption should always plead\n\nthe exemption as an affirmative defense. Harwood v. McDonough, 344 Ill. App. 3d 242, 246, n.1\n\n(2003) (“We conclude that the exemptions contained in section 7 [of FOIA] constitute affirmative\n\ndefenses which the defendant has the burden of pleading and proving.”).\n\n¶ 27 The Sun-Times’ argument that CPD forfeited its ability to assert FOIA exemptions is\n\ncompelling. Forfeiture, is, however, a limitation on the parties and not on this court, and this court\n\nmay overlook forfeiture where necessary to obtain a just result or maintain a sound body of\n\nprecedent. Wilson v. Humana Hospital, 399 Ill. App. 3d 751, 757 (2010).\n\n¶ 28 In a garden-variety FOIA case, we might be inclined to honor CPD’s forfeiture. Because\n\nthis case involves the secrecy of a grand jury and an order issued by a sister court, we decline to\n\nfind forfeiture here. In Special Prosecutor, our supreme court held that many of the records at issue\n\nhere were protected from disclosure “out of respect for the judicial process.” See id. ¶ 68. The\n\ncircuit court’s order, if affirmed, would put the police department in the Catch-22 situation of\n\nhaving to decide which of two conflicting court orders to obey and which to flout under pain of\n\ncontempt. Nothing in FOIA requires the judicial system to put anyone in that position. We\n\ntherefore decline to find forfeiture as to CPD’s claimed exemptions under section 7(1)(a)\n\n(protected under a federal or State law) and the doctrine of Special Prosecutor. We do, however,\n\nhonor its forfeitures as to its claimed exemption under section 3(g) (5 ILCS 140/3(d) (West 2018)\n\n(“A public body that fails to respond to a request received may not treat the request as unduly\n\n\n\n\n - 12 -\n\f1-20-1262\n\nburdensome under subsection (g)”). We also honor its forfeiture as to its argument that the request\n\nis repetitive.\n\n¶ 29 In granting summary judgment to the Sun-Times, the circuit court bypassed the statutory\n\nprocess outlined in FOIA for an in camera review of public records claimed to be exempt from\n\ndisclosure. Section 11(f) of FOIA provides in pertinent part:\n\n “In any action considered by the court, the court shall consider the matter de novo,\n\n and shall conduct such in camera examination of the requested records as it finds\n\n appropriate to determine if such records or any part thereof may be withheld under\n\n any provision of this Act.” (Emphasis added.) 5 ILCS 140/11(f) (West 2018).\n\n¶ 30 Our supreme court has found that in camera review is the most effective way for a public\n\nbody to objectively show that a claimed exemption applies. Illinois Education Ass’n, 204 Ill. 2d at\n\n471. Relying on the “as it finds appropriate” clause in the above-quoted statute, the Sun-Times\n\nargues that a court retains full discretion to conduct, or not conduct, an in camera inspection\n\ndepending on the facts of the case. We do not quarrel with that statement of the law. For example,\n\n“the circuit court need not conduct an in camera review where the public body meets its burden of\n\nshowing that the statutory exemption applies by means of affidavits.” Id. at 469. However, the\n\nsame court noted that an in camera review is necessary if the public body’s claimed exemptions\n\nare “sweeping,” as they are here. Id. Given the nature of the records at issue here, and the uncertain\n\napplicability of the grand jury protective order, the circuit court should have conducted an in\n\ncamera review of the documents before ordering their wholesale release. We therefore reverse the\n\ncircuit court’s order granting the Sun-Times’ motion for partial summary judgment and ordering\n\nCPD to release the records to the Sun-Times, and remand for further proceedings.\n\n\n\n\n - 13 -\n\f1-20-1262\n\n¶ 31 With respect to the remand, we note the following. Section 11(e) of FOIA contains an\n\nindexing requirement that is interrelated with the in camera review requirement. It provides:\n\n “On motion of the plaintiff, prior to or after in camera inspection, the court shall\n\n order the public body to provide an index of the records to which access has been\n\n denied. The index shall include the following:\n\n (i) A description of the nature or contents of each document withheld, or each\n\n deletion from a released document, provided, however, that the public body shall\n\n not be required to disclose the information which it asserts is exempt; and\n\n (ii) A statement of the exemption or exemptions claimed for each such deletion\n\n or withheld document.” 5 ILCS 140/11(e) (West 2018).\n\nThe Sun-Times moved for an order requiring CPD to provide a section 11(e) index. The circuit\n\ncourt granted that motion, but the issue fell by the wayside when the court ordered the release of\n\nthe records in full.\n\n¶ 32 We also note that section 11(h) of FOIA requires that this case be expedited. The law states:\n\n “Except as to causes the court considers to be of greater importance, proceedings\n\n arising under this Section shall take precedence on the docket over all other causes\n\n and be assigned for hearing and trial at the earliest practicable date and expedited\n\n in every way.” 5 ILCS 140/11(h) (West 2018).\n\nTo expedite proceedings on remand, we direct the circuit court to punctiliously follow the process\n\noutlined in the FOIA statute by requiring CPD to prepare a section 11(e) index and all documents\n\nresponsive to the Sun-Times’ request for in camera review by a prompt date certain. The index\n\nshall contain notations indicating as to each document, whether CPD has already given it to the\n\nSun-Times, and if so, under what CPD FOIA request docket number it was provided. CPD shall\n\n - 14 -\n\f1-20-1262\n\nalso prepare a redacted index and provide it to the Sun-Times, omitting only such information as\n\nit believes is protected from disclosure under one of the grand jury protective orders, specifying as\n\nto each redaction which protective order governs. The circuit court shall review the unredacted\n\nindex and the documents to determine: (1) which documents CPD has already provided to the Sun-\n\nTimes; and (2) which documents CPD cannot release because of any of the grand jury protective\n\norders. We authorize the circuit court to receive a copy of the OIG protective order which is under\n\nseal.\n\n¶ 33 CONCLUSION\n\n¶ 34 We reverse the order granting summary judgment to the Sun-Times and remand for further\n\nproceedings consistent with this order and the instructions therein.\n\n¶ 35 Reversed and remanded with instructions.\n\n\n\n\n - 15 -\n\f"} {"dedup_key":"2022 IL App (1st) 210090","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (1st) 210090","case_name":"Calloway v. Chicago Police Department","court_level":"Appellate","appellate_district":"1st","year":2022,"county":"Cook","appellate_docket":"1-21-0090","circuit_docket":"19-CH-11308","published":1,"authoring_justice":"Rochford","statute":["FOIA"],"exemptions_cited":[],"public_body":"Chicago Police Department","requesting_party":"William Calloway","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that the circuit court lacked a sufficient basis to grant summary judgment regarding FOIA requests for records involving a minor because the defendant's affidavit was inadequate and no in camera review was conducted. The case was remanded for the circuit court to determine whether the records are exempt from disclosure under FOIA and relevant juvenile confidentiality provisions.","best_text_source":"Court Opinions - FOIA/Calloway v. Chicago Police Department, 2022 IL App (1st) 210090.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:40.170740","site_category":"FOIA Response Process","date_decided":"2022-03-24","site_url":"/cases/2022%20IL%20App%20(1st)%20210090/","text_url":"/case-text/2022%20IL%20App%20(1st)%20210090.txt","full_text":" Digitally signed\n by Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2023.02.02\n 13:19:07 -06'00'\n\n\n\n Calloway v. Chicago Police Department, 2022 IL App (1st) 210090\n\n\n\nAppellate Court WILLIAM CALLOWAY, Plaintiff-Appellee, v. THE CHICAGO\nCaption POLICE DEPARTMENT, Defendant-Appellant.\n\n\n\n\nDistrict & No. First District, Fourth Division\n No. 1-21-0090\n\n\n\nFiled March 24, 2022\n\n\n\nDecision Under Appeal from the Circuit Court of Cook County, No. 19-CH-11308; the\nReview Hon. Pamela McLean Meyerson, Judge, presiding.\n\n\n\nJudgment Affirmed in part and reversed in part; cause remanded.\n\n\nCounsel on Celia Meza, Corporation Counsel, of Chicago (Myriam Zreczny\nAppeal Kasper, Elizabeth Mary Tisher, Suzanne M. Loose, and Tara D.\n Kennedy, Assistant Corporation Counsel, of counsel), for appellant.\n\n Joshua Burday, Matthew Topic, Merrick Wayne, and Shelley\n Geiszler, of Loevy & Loevy, of Chicago, for appellee.\n\f Panel JUSTICE ROCHFORD delivered the judgment of the court, with\n opinion.\n Presiding Justice Reyes and Justice Lampkin concurred in the\n judgment and opinion.\n\n\n OPINION\n\n¶1 Plaintiff-appellee, William Calloway, brought this suit against defendant-appellant, the\n Chicago Police Department (CPD), seeking disclosure of certain records related to the 2019\n officer-involved fatal shooting of 17-year-old M.E., pursuant to the Freedom of Information\n Act (FOIA) (5 ILCS 140/1 et seq. (West 2018)).\n¶2 The circuit court granted plaintiff’s motion for partial summary judgment and denied\n CPD’s cross-motion for summary judgment, ruling that certain confidentiality provisions\n applicable to the law enforcement records of minors contained in the Juvenile Court Act of\n 1987 (Act) (705 ILCS 405/1-1 et seq. (West 2018)) did not apply to deceased minors. CPD\n appeals, and for the following reasons we reverse in part, affirm in part, and remand for further\n proceedings.\n¶3 On February 16, 2019, 17-year-old M.E. was fatally shot by a CPD officer while M.E.\n attempted to flee from a vehicle that had crashed after failing to stop in response to an\n attempted traffic stop. On February 18, 2019, plaintiff submitted a FOIA request to CPD for\n “all dash cam, surveillance, and body cam video, and audio, police reports collected as part of\n the investigation into the fatal officer involved shooting of [M.E.].” On February 27, 2019,\n CPD denied this request in writing.\n¶4 In its denial letter, CPD noted that section 7(1)(a) of FOIA exempts from disclosure\n “[i]nformation specifically prohibited from disclosure by federal or State law or rules and\n regulations implementing federal or State law” (5 ILCS 140/7(1)(a) (West 2018)), and further\n asserted that the Act “strictly restricts the disclosure of law enforcement records that pertain to\n a juvenile’s arrest, charge, or investigation.” CPD specifically relied on sections 1-7(C) and 5-\n 905(5) of the Act (705 ILCS 405/1-7(C), 5-905(5) (West 2018)), specifically noting that\n section 1-7(C) provides that “[t]he records of law enforcement officers *** concerning all\n minors under 18 years of age must be maintained separate from the records of arrests and may\n not be open to public inspection or their contents disclosed to the public.” Id. § 1-7(C).\n¶5 On September 5, 2019, this court issued a decision in NBC Subsidiary (WMAQ-TV) LLC\n v. Chicago Police Department, 2019 IL App (1st) 181426, ¶ 4, in which we concluded that\n “FOIA’s disclosure exemption for information prohibited from disclosure by state law did not\n apply to a request for records related to the investigation of police officers who fatally shot a\n minor” because such records did not fall within the confidentiality provisions of the Act.\n Interpreting a prior, preamended version of FOIA, this court concluded that\n “the plain language of sections 1-7 and 5-905 of the Act in effect prior to the December\n 20, 2018, amendments governs the confidentiality of law enforcement records that\n focus on a minor as the subject of an investigation, arrest, or custodial detention rather\n than reports created to assess the conduct of public employees or officials.” Id. ¶ 31.\n\n\n\n -2-\n\f This court therefore concluded that the trial court properly ordered CPD to release records\n “concerning the investigation of the police shooting of [the minor],” as those records did “not\n relate to the investigation, arrest or custodial detention of a minor within the meaning of the\n Act’s confidentiality requirements.” Id.\n¶6 On September 20, 2019, plaintiff requested in writing that CPD provide a revised response\n to his FOIA request considering the NBC decision. CPD did not respond to this request.\n¶7 On September 30, 2019, plaintiff filed this lawsuit in the circuit court reiterating this history\n and alleging that CPD had willfully and intentionally violated FOIA by failing to perform an\n adequate search and by failing to provide records responsive to his FOIA request, asserting\n that those records were nonexempt from disclosure. Plaintiff requested that the circuit court\n declare that CPD violated FOIA, order CPD to produce the requested records, enjoin CPD\n from withholding nonexempt records, and order CPD to pay civil penalties and award attorney\n fees and costs. CPD answered the complaint, denying it had violated FOIA by withholding the\n requested records or by failing to perform an adequate search.\n¶8 Plaintiff filed a motion for partial summary judgment asserting that it was entitled to the\n requested records and that they should be immediately released. Therein, plaintiff argued that\n the records were not exempt from disclosure either because (1) this court’s decision in NBC\n held otherwise or (2) the confidentiality provisions of the Act do not apply at all when the\n records in question involve a minor that is deceased. Plaintiff’s motion was supported by a\n copy of orders entered by another circuit court judge in a separate FOIA case seeking records\n related to a fatal shooting of a minor, in which the judge found that the Act’s privacy provisions\n simply did not apply at all to deceased minors. Mari v. Chicago Police Department, No. 18-\n CH-07141 (Cir. Ct. Cook County, Feb. 25, 2019); Mari v. Chicago Police Department, No.\n 18-CH-07141 (Cir. Ct. Cook County, May 29, 2019).\n¶9 CPD responded with a cross-motion for summary judgment in which it contended that\n M.E. was shot after he exited the vehicle with a handgun. The records regarding this incident\n were inventoried under two separate Records Division (RD) case numbers. The first, RD\n number JC155452, contained records related to the investigation into the police involvement\n with M.E.’s death and had purportedly already been provided to plaintiff. The second, RD\n number JC155274, concerned “the CPD investigation into ME as a suspect and offender.” CPD\n contended that these records were exempt from disclosure without an order from the juvenile\n court under the express language of the Act and the decision in NBC. CPD’s contentions were\n supported by the affidavit executed by Peter Edwards, the commanding officer of CPD’s FOIA\n unit, who generally averred to the accuracy of these contentions.\n¶ 10 Plaintiff responded to CPD’s motion by contending that Edwards’s affidavit was\n insufficient to establish that the contents of RD number JC155274 were exempt from\n disclosure, where the affidavit contained only conclusory statements. Plaintiff also continued\n to press its argument that the Act’s privacy provisions simply did not apply to the records of a\n deceased minor.\n¶ 11 On November 13, 2020, the circuit court entered a written order granting plaintiff’s motion\n for partial summary judgment, denying CPD’s cross-motion for summary judgment, and\n requiring plaintiff to produce all the requested records by December 21, 2020. In the report of\n proceedings for that day, the circuit court explained that it was persuaded by the reasoning\n contained in the orders entered by the circuit court judge in the Mari case holding that “the\n Juvenile Court Act exemption ceases upon the minor’s death.”\n\n -3-\n\f¶ 12 On December 18, 2020, CPD filed a motion noting that issues regarding attorney fees and\n costs remained pending and asking for the entry of an order finding no just reason for delaying\n appeal, allowing for an interlocutory appeal pursuant to Illinois Supreme Court Rule 304(a)\n (eff. Mar. 8, 2016). The motion also sought a stay of the order requiring production of the\n requested records pending the outcome of an appeal. An order granting that motion was entered\n on January 4, 2021, and CPD filed a notice of appeal on January 27, 2021.\n¶ 13 Summary judgment may be entered where “the pleadings, depositions, and admissions on\n file, together with the affidavits, if any, show that there is no genuine issue as to any material\n fact and that the moving party is entitled to judgment as a matter of law.” 735 ILCS 5/2-1005(c)\n (West 2020).\n “Although the filing of cross-motions for summary judgment does not necessarily\n establish the lack of an issue of material fact or obligate a court to render summary\n judgment, it does indicate that the parties agree that the case involves a question of law\n and that they invite the court to decide the issues based on the record.” Shared Imaging,\n LLC v. Hamer, 2017 IL App (1st) 152817, ¶ 13.\n We conduct a de novo review of a ruling on a motion for summary judgment. Bank of New\n York Mellon v. Wojcik, 2019 IL App (1st) 180845, ¶ 19.\n¶ 14 The parties’ contentions regarding the relevant provisions of FOIA and the Act also present\n a question of statutory interpretation, which we similarly review de novo. Millennium Park\n Joint Venture, LLC v. Houlihan, 241 Ill. 2d 281, 294 (2010). The rules applicable to this task\n are well established and were summarized in Hendricks v. Board of Trustees of the Police\n Pension Fund, 2015 IL App (3d) 140858, ¶ 14:\n “The fundamental rule of statutory interpretation is to ascertain and give effect to the\n intent of the legislature. [Citation.] The most reliable indicator of that intent is the\n language of the statute itself. [Citation.] In determining the plain meaning of statutory\n language, a court will consider the statute in its entirety, the subject the statute\n addresses, and the apparent intent of the legislature in enacting the statute. [Citations.]\n If the statutory language is clear and unambiguous, it must be applied as written,\n without resorting to further aids of statutory interpretation. [Citation.] A court may not\n depart from the plain language of the statute and read into it exceptions, limitations, or\n conditions that are not consistent with the express legislative intent.”\n¶ 15 Here, FOIA itself expressly declares the statute’s public policy and the legislature’s intent.\n Section 1 provides that “it is declared to be the public policy of the State of Illinois that all\n persons are entitled to full and complete information regarding the affairs of government and\n the official acts and policies of those who represent them as public officials and public\n employees consistent with the terms of this Act.” 5 ILCS 140/1 (West 2020). Section 1 goes\n on to explain that “[s]uch access is necessary to enable the people to fulfill their duties of\n discussing public issues fully and freely, making informed political judgments and monitoring\n government to ensure that it is being conducted in the public interest.” Id. As such, section 1\n provides that “[i]t is a fundamental obligation of government to operate openly and provide\n public records as expediently and efficiently as possible in compliance with this Act.” Id.\n Indeed, section 1.2 of FOIA provides that “[a]ll records in the custody or possession of a public\n body are presumed to be open to inspection or copying. Any public body that asserts that a\n record is exempt from disclosure has the burden of proving by clear and convincing evidence\n that it is exempt.” Id. § 1.2.\n\n -4-\n\f¶ 16 Specific exemptions from this required disclosure are provided in section 7 of FOIA. Id.\n § 7; see also id. § 3(a) (“Each public body shall make available to any person for inspection or\n copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.”).\n However,\n “[r]estraints on access to information, to the extent permitted by this Act, are limited\n exceptions to the principle that the people of this State have a right to full disclosure of\n information relating to the decisions, policies, procedures, rules, standards, and other\n aspects of government activity that affect the conduct of government and the lives of\n any or all of the people.” Id. § 1.\n Based upon the legislature’s clear expression of public policy and intent, our supreme court\n has held that FOIA is to be generally accorded liberal construction, while its exemptions are\n to be construed narrowly. Southern Illinoisan v. Illinois Department of Public Health, 218 Ill.\n 2d 390, 416 (2006). Therefore, “ ‘when a public body receives a proper request for information,\n it must comply with that request unless one of the narrow statutory exemptions set forth in\n section 7 of the Act applies.’ ” Id. at 417 (quoting Illinois Education Ass’n v. Illinois State\n Board of Education, 204 Ill. 2d 456, 463 (2003)).\n¶ 17 An individual who has been denied access to records may file an action in the circuit court\n for injunctive or declaratory relief. Chicago Tribune Co. v. Department of Financial &\n Professional Regulation, 2014 IL App (4th) 130427, ¶ 23 (citing 5 ILCS 140/11(a) (West\n 2010)). The public body then has the burden to prove, by clear and convincing evidence, that\n the requested records fall within an exemption. 5 ILCS 140/11(f) (West 2020).\n¶ 18 As relevant here, FOIA provides that “[i]nformation specifically prohibited from\n disclosure by federal or State law or rules and regulations implementing federal or State law”\n are exempt from disclosure under FOIA. Id. § 7(1)(a). FOIA more specifically provides that\n “[i]nformation which is or was prohibited from disclosure by the Juvenile Court Act of 1987”\n shall be exempt from disclosure. Id. § 7.5(bb).\n¶ 19 Turning to the Act, the legislature has explicitly stated that the\n “purpose of this Act is to secure for each minor subject hereto such care and guidance,\n preferably in his or her own home, as will serve the safety and moral, emotional,\n mental, and physical welfare of the minor and the best interests of the community; to\n preserve and strengthen the minor’s family ties whenever possible, removing him or\n her from the custody of his or her parents only when his or her safety or welfare or the\n protection of the public cannot be adequately safeguarded without removal.” 705 ILCS\n 405/1-2 (West 2020).\n Article V of the Act more specifically pertains to delinquent minors who have violated or\n attempted to violate the law. Id. § 5-101(1). It is intended to promote a juvenile justice system\n to deal with the problem of juvenile delinquency that will protect the community, impose\n accountability on juveniles for violations of the law, and equip them to live responsibly and\n productively. Id. To effectuate this intent, the Act’s purposes include protecting citizens from\n crime, holding juvenile offenders accountable for their actions, individually assessing the\n juveniles to prevent further delinquent behavior, and providing due process. Id.\n¶ 20 To effectuate these purposes and goals, the Act contains the privacy provisions at issue\n here. The Act defines “juvenile law enforcement record” to include\n\n\n\n -5-\n\f “records of arrest, station adjustments, fingerprints, probation adjustments, the issuance\n of a notice to appear, or any other records or documents maintained by any law\n enforcement agency relating to a minor suspected of committing an offense, and\n records maintained by a law enforcement agency that identifies a juvenile as a suspect\n in committing an offense, but does not include records identifying a juvenile as a\n victim, witness, or missing juvenile and any records created, maintained, or used for\n purposes of referral to programs relating to diversion as defined in subsection (6) of\n Section 5-105.” Id. § 1-3(8.2).\n The Act then contains the following privacy provisions with respect to such law enforcement\n records related to minors.\n¶ 21 First, the Act provides that:\n “All juvenile law enforcement records which have not been expunged are confidential\n and may never be disclosed to the general public or otherwise made widely available.\n Juvenile law enforcement records may be obtained only under this Section and Section\n 1-8 [as to juvenile court records] and Part 9 of Article V of this Act, when their use is\n needed for good cause and with an order from the juvenile court, as required by those\n not authorized to retain them.” Id. § 1-7(A).\n The Act further provides that the “records of law enforcement officers *** concerning all\n minors under 18 years of age must be maintained separate from the records of arrests and may\n not be open to public inspection or their contents disclosed to the public.” Id.§ 1-7(C). “In\n determining whether the records should be available for inspection, the court shall consider the\n minor’s interest in confidentiality and rehabilitation over the moving party’s interest in\n obtaining the information.” Id.§ 1-7(C)(3).\n¶ 22 Article V of the Act, which again pertains specifically to delinquent minors, contains\n similar confidentiality provisions. Section 5-905(1) of the Act states in relevant part that\n “[i]nspection and copying of law enforcement records maintained by law enforcement agencies\n that relate to a minor who has been investigated, arrested, or taken into custody before his or\n her 18th birthday shall be restricted to [various parties not at issue here].” Id. § 5-905(1). It\n goes on to provide that “[t]he records of law enforcement officers *** concerning all minors\n under 18 years of age must be maintained separate from the records of adults and may not be\n open to public inspection or their contents disclosed to the public except by order of the court\n or [other circumstances not relevant here].” Id. § 5-905(5). For purposes of article V, “court”\n is defined as “the circuit court in a session or division assigned to hear proceedings under this\n Act, and includes the term Juvenile Court.” Id. § 5-105(1.5).\n¶ 23 Finally, the Act provides at least one additional confidentiality provision relevant to our\n discussion. Section 5-915(0.1)(a) of the Act provides, subject to limitations not applicable here,\n that:\n “The Illinois State Police and all law enforcement agencies within the State shall\n automatically expunge, on or before January 1 of each year, all juvenile law\n enforcement records relating to events occurring before an individual’s 18th birthday\n if:\n (1) one year or more has elapsed since the date of the arrest or law enforcement\n interaction documented in the records;\n\n\n\n -6-\n\f (2) no petition for delinquency or criminal charges were filed with the clerk of\n the circuit court relating to the arrest or law enforcement interaction documented in\n the records; and\n (3) 6 months have elapsed since the date of the arrest without an additional\n subsequent arrest or filing of a petition for delinquency or criminal charges whether\n related or not to the arrest or law enforcement interaction documented in the\n records.” Id. § 5-915(0.1)(a)(1).\n “ ‘Expunge’ means to physically destroy the records and to obliterate the minor’s name from\n any official index, public record, or electronic database.” Id. § 1-3(7.03). 1\n¶ 24 Considering the above statutory language, the circuit court’s conclusion that the Act’s\n privacy provisions simply do not apply at all to the law enforcement records of a deceased\n minor was incorrect. Here, the Act clearly provides that juvenile law enforcement records “are\n confidential and may never be disclosed to the general public or otherwise made widely\n available.” (Emphases added.) Id. § 1-7(A). Such records may only be obtained “when their\n use is needed for good cause and with an order from the juvenile court, as required by those\n not authorized to retain them.” (Emphasis added.) Id. The Act further provides that such\n records “must be maintained separate from the records of arrests and may not be open to public\n inspection or their contents disclosed to the public.” (Emphases added.) Id. § 1-7(C). Similar\n provisions are contained in article V of the Act. Id. § 5-905(1), (5). Finally, section 5-\n 915(0.1)(a) of the Act, subject to limitations not applicable here, provides for the annual\n automatic destruction of such records where—as is the case here—the minor’s arrest or law\n enforcement interaction was not followed by criminal or delinquency proceedings. Id. § 5-\n 915(0.1)(a)(1).\n¶ 25 None of these privacy provisions contain any language explicitly or implicitly limiting the\n scope of these protections where the records at issue involve a minor that is deceased. Again,\n the fundamental rule of statutory interpretation is to ascertain and give effect to the intent of\n the legislature, the most reliable indicator of that intent is the language of the statute itself.\n Hendricks, 2015 IL App (3d) 140858, ¶ 14. If the statutory language is clear and unambiguous\n it must be applied as written, and this court may not depart from the plain language of the\n statute and read into a statute exceptions, limitations, or conditions that are not consistent with\n the express legislative intent. Id. To read an exception for the law enforcement records of\n deceased minors into these privacy provisions would impermissibly violate these well-\n established rules of statutory construction.\n¶ 26 Our reading of these provisions is also supported by this court’s decision in NBC, 2019 IL\n App (1st) 181426. It is true that the precise issue raised here—whether the Act’s privacy\n provisions simply do not apply at all to the law enforcement records of a deceased minor—\n was not explicitly raised or addressed in that decision. However, that case did similarly involve\n CPD’s denial of a request for records regarding the fatal shooting of a minor by a CPD officer.\n Id. ¶ 1. And, as made clear in our opinion in that case, the clear applicability of the privacy\n provisions of the Act to at least some of CPD’s records regarding the fatal shooting of a\n\n 1\n This case would arguably be moot had the records at issue here been destroyed pursuant to these\n sections. However, neither party has indicated this has happened and the Act specifically provides for\n the retention of such records for two years for the purposes of use in civil litigation against a public\n body. 705 ILCS 405/5-915(0.4) (West 2020).\n\n -7-\n\f deceased minor was recognized and accepted by the public access counselor of the Illinois\n Attorney General’s office in a nonbinding determination letter, the circuit court in its order\n ruling on cross-motions for summary judgment, and this court in our opinion affirming the\n circuit court’s order. Id. ¶¶ 7-8, 10-11, 31, 35. At the very least, our decision in NBC contains\n an implicit recognition and acceptance that the privacy provisions of the Act are applicable to\n records regarding a deceased minor.\n¶ 27 In addition, a similar conclusion was previously reached in a separate, binding opinion\n issued in another case by the public access counselor of the Illinois Attorney General’s office,\n in compliance with section 9.5(f) of FOIA. 5 ILCS 140/9.5(f) (West 2012); see 2012 Ill. Att’y\n Gen. Pub. Access Op. No. 12-012, at 7-8, https://foiapac.ilag.gov/content/pdf/opinions/2012/\n 12-012.pdf [https://perma.cc/LQY7-V4BZ]. The only contrary reading of the privacy\n provisions of the Act with respect to the records of deceased minors appears to have been made\n by the circuit court both here and in the Mari case.\n¶ 28 In reaching our conclusion that the Act applies to deceased minors, we reject two specific\n arguments raised by plaintiff on appeal. First, we reject plaintiff’s contention that such a\n reading of the Act would frustrate the public policy of FOIA and run afoul of the rule that\n FOIA is to be generally accorded liberal construction, while its exemptions are to be construed\n narrowly. Southern Illinoisan, 218 Ill. 2d at 416. As this court has recognized, “while FOIA\n serves to promote transparency in government actions [citation], even FOIA recognizes that\n there are exceptions to this rule.” King v. Cook County Health & Hospitals System, 2020 IL\n App (1st) 190925, ¶ 45. The exception at issue here is but one of the numerous exceptions\n contained in section 7 of FOIA. See 5 ILCS 140/7 (West 2020). Furthermore, our reading of\n the Act does not construe this exception to FOIA broadly. Rather, we simply apply the clear\n and unambiguous language of the Act as written.\n¶ 29 We also reject plaintiff’s argument that applying the Act’s privacy protections to the\n records of deceased minors would be absurd, where the Act’s concerns regarding\n confidentiality or rehabilitation could not possibly be served where the minor in question is\n deceased. The Act clearly allows for the disclosure of certain law enforcement records related\n to a minor only when their use is needed for good cause and only with an order from the\n juvenile court. 705 ILCS 405/1-7(A) (West 2020). The Act also clearly provides that in\n “determining whether the records should be available for inspection, the court shall consider\n the minor’s interest in confidentiality and rehabilitation over the moving party’s interest in\n obtaining the information.” Id. § 1-7(C)(3). It may well be that the Act’s concerns regarding\n confidentiality or rehabilitation may be lessened or even eliminated in circumstances where\n the minor in question is deceased. The point is that, under the plain language of FOIA and the\n Act, it is only the juvenile court that is permitted to make that determination and order release\n of otherwise protected records.\n¶ 30 Having concluded that the circuit court incorrectly concluded that the Act did not apply at\n all to the records in question here because M.E. was deceased, we must still determine if the\n circuit court properly granted plaintiff’s motion for partial summary judgment and properly\n denied CPD’s cross-motion for summary judgment. To the extent that the circuit court reached\n these holdings based on its blanket conclusion that the Act simply did not apply, and plaintiff\n was therefore entitled to the records as a matter of law, those holdings were made in error.\n Ultimately, we conclude that the circuit court improperly granted plaintiff’s motion for partial\n summary judgment and properly denied CPD’s cross-motion for summary judgment because\n\n -8-\n\f there remain issues of material fact with respect to which exact CPD records regarding the\n shooting death of M.E. that may be disclosed. Monson v. City of Danville, 2018 IL 122486,\n ¶ 12 (“The purpose of summary judgment is not to try an issue of fact but to determine whether\n one exists.”).\n¶ 31 Considering our holding in this opinion, FOIA entitles plaintiff only to those records\n related to the incident involving M.E. that are not exempt pursuant to the Act, and it was CPD’s\n burden to prove, by clear and convincing evidence, that the requested records fall within\n FOIA’s exemption for such records. 5 ILCS 140/11(f) (West 2020). This burden is only met\n when the public agency “ ‘provide[s] a detailed justification for its claim of exemption,\n addressing the requested documents specifically and in a manner allowing for adequate\n adversary testing.’ ” (Emphasis omitted.) Illinois Education Ass’n, 204 Ill. 2d at 464 (quoting\n Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530, 537 (1989)). Section 11(f) of FOIA (5\n ILCS 140/11(f) (West 2020)) requires the circuit court to review the request for documents\n de novo and conduct an in camera examination of the requested records as it finds appropriate\n to determine if the records, or any part thereof, may be withheld under any provision of the\n Act. Southern Illinoisan, 218 Ill. 2d at 418. However, an in camera inspection is not necessary\n “where the public body meets its burden of showing that the statutory exemption applies by\n means of affidavits.” Illinois Education Ass’n, 204 Ill. 2d at 469 (citing Williams v. Klincar,\n 237 Ill. App. 3d 569, 572-73 (1992)).\n¶ 32 Here, we agree with plaintiff that CPD failed to meet this burden below. The affidavit\n provided by CPD was brief and superficial, only identifying the records at issue in broad\n conclusory language as being filed under two different RD numbers, one of which purportedly\n contained records exempt under the Act. There was no discussion of the individual records\n filed under each RD number, or whether or to what extent portions of certain records could be\n disclosed in a redacted form. See Illinois Education Ass’n, 204 Ill. 2d at 469 (“affidavits will\n not suffice if the public body’s claims are conclusory, merely recite statutory standards, or are\n too vague or sweeping”); Stern v. Wheaton-Warrenville Community Unit School District 200,\n 233 Ill. 2d 396, 412 (2009) (“the mere ‘commingling’ of exempt and nonexempt material does\n not prevent a public body from disclosing the nonexempt portion of the record”).\n¶ 33 Therefore, given the inadequacy of CPD’s affidavit, the lack of an in camera review of the\n records below, and the fact that the records in question have not been included in the record on\n appeal for our own review, we are compelled to conclude that the court had an insufficient\n basis to grant either parties’ motion for summary judgment and this cause must be remanded\n for the circuit court to conduct further proceedings to determine whether the records in question\n are exempt from disclosure under the Act. On remand, the circuit court shall determine what,\n if any, portions of the requested records may be disclosed notwithstanding the confidentiality\n provisions applicable to the law enforcement records of minors contained in the Act. Illinois\n Education Ass’n, 204 Ill. 2d at 469-70; In re Appointment of Special Prosecutor, 2017 IL App\n (1st) 161376, ¶ 68, aff’d, 2019 IL 122949. Any records that are exempt under the Act may not\n be disclosed pursuant to plaintiff’s FOIA request, and plaintiff will have to obtain those\n records—if at all—pursuant to an order entered by the juvenile court.\n¶ 34 For the foregoing reasons, the circuit court’s order granting partial summary judgment in\n favor of plaintiff is reversed and its order denying CPD’s cross-motion for summary judgment\n is affirmed. This matter is remanded for further proceedings consistent with this opinion.\n\n\n -9-\n\f¶ 35 Affirmed in part and reversed in part; cause remanded.\n\n\n\n\n - 10 -\n\f"} {"dedup_key":"2022 IL App (1st) 210673-U","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (1st) 210673-U","case_name":"Nathson Fields v. Cook County State’s Attorney’s Office","court_level":"Appellate","appellate_district":"1st","year":2022,"county":"Cook","appellate_docket":"1-21-0673","circuit_docket":"20 CH 2039","published":0,"authoring_justice":"Cunningham","statute":["FOIA"],"exemptions_cited":[],"public_body":"Cook County State’s Attorney’s Office","requesting_party":"Nathson Fields","disposition":"remanded","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court vacated the trial court's grant of summary judgment in favor of the State's Attorney's Office regarding a FOIA request for witness relocation records. The case was remanded with instructions for the trial court to conduct an in camera review of the withheld documents to determine the validity of the claimed exemptions.","best_text_source":"Court Opinions - FOIA/Fields v. Cook County State's Attorney's Office, 2022 IL App (1st) 210673-U .pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:40.170783","site_category":"General Records Exemptions","date_decided":null,"site_url":"/cases/2022%20IL%20App%20(1st)%20210673-U/","text_url":"/case-text/2022%20IL%20App%20(1st)%20210673-U.txt","full_text":" 2022 IL App (1st) 210673-U\n FIFTH DIVISION\n MARCH 31, 2022\n\n\n No. 1-21-0673\n\nNOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the\nlimited circumstances allowed under Rule 23(e)(1).\n______________________________________________________________________________\n\n IN THE\n APPELLATE COURT OF ILLINOIS\n FIRST JUDICIAL DISTRICT\n______________________________________________________________________________\n\nNATHSON FIELDS, ) Appeal from the\n ) Circuit Court of\n Plaintiffs-Appellant, ) Cook County.\n )\n v. ) No. 20 CH 2039\n )\nCOOK COUNTY STATE’S ATTORNEY’S )\nOFFICE, ) Honorable\n ) Caroline K. Moreland,\n Defendants-Appellee. ) Judge Presiding.\n______________________________________________________________________________\n\n JUSTICE CUNNINGHAM delivered the judgment of the court.\n Justices Hoffman and Connors concurred in the judgment.\n\n ORDER\n\n¶1 Held: The trial court’s judgment denying the plaintiff’s motion for summary judgment\n and granting the defendant’s motion for summary judgment is vacated and the\n matter is remanded for an in camera review.\n\n¶2 On January 11, 2020, the plaintiff-appellant, Nathson Fields, filed a Freedom of\n\nInformation Act (Act) (5 ILCS 140/1 et. seq. (West 2018)) request with the Cook County State’s\n\nAttorney’s Office for all information, including forms, related to approval of all victim/witness\n\nrelocation requests. On February 7, 2020, the Cook County State’s Attorney’s Office presented its\n\nresponse to Mr. Fields’ Freedom of Information Act request, providing monthly expense reports\n\fNo. 1-21-0673\n\nand withholding some categories of information based on its interpretation of exemptions under\n\nthe Act to which it believed it was entitled. On February 19, 2020, Mr. Fields filed a complaint in\n\nthe circuit court of Cook County, alleging that the Cook County State’s Attorney’s Office did not\n\nmeet its burden of proving that the withheld records were exempt from disclosure under the Act.\n\nThe parties filed cross-motions for summary judgment on the issue. On June 2, 2021, the circuit\n\ncourt denied Mr. Field’s motion for summary judgment and granted the Cook County State’s\n\nAttorney’s motion for summary judgment. On appeal, Mr. Fields argues that the Cook County\n\nState’s Attorney’s Office did not meet its burden to show that the withheld categories were exempt.\n\nFor the reasons that follow, we vacate the judgment of the circuit court of Cook County and remand\n\nthe case to the circuit court for further proceedings in accordance with this order.\n\n¶3 BACKGROUND\n\n¶4 On January 11, 2020, Mr. Fields filed a request under the Act, upon the Cook County\n\nState’s Attorney’s Office, asking for: “all approved Victim/Witness Relocation Request Approval\n\nForms or other such forms submitted to obtain relocation compensation for a witness. You may\n\nredact witness names and personal information.” On February 7, 2020, the Cook County State’s\n\nAttorney’s Office submitted its response to Mr. Fields’ request. That submission was in the form\n\nof monthly expense reports for the Victim/Witness Relocation program between the years of 1999\n\nand 2019. Examples of the information provided in response to the Freedom of Information Act\n\nrequest were: the monthly monetary amounts spent on hotel expenses, moving expenses, and\n\nsecurity deposits. Notably, the Cook County State’s Attorney’s disclosure stated that it did not\n\ninclude any information regarding the following: (1) case name; (2) case number; (3) relocation\n\nnumber; (4) date of entry; (5) emergency or not; (6) name of victim/ witness; (7) names of others\n\nincluding family members; (8) Assistant State’s Attorney (ASA) requester; (9) Victim Witness\n\n -2-\n\fNo. 1-21-0673\n\npersonnel assigned; (10) victim/witness address; (11) victim/witness phone number; (12)\n\nvictim/witness date of birth; (13) victim/witness gender; (14) victim/witness race; (15)\n\nvictim/witness primary language; (16) victim/witness social security number; (17) victim/witness\n\nlicense plate number/vehicle identification number; (18) victim/witness income; (19)\n\nvictim/witness public aid and Section 8 information; (20) approval; (21) any check/cash fee\n\namount paid; (22) emergency living expenses paid; (23) hotel expenses paid; (24) moving\n\nexpenses paid; (25) rent monies paid; (26) security deposit monies paid; and (27) transportation\n\nmonies paid via the program. The Cook County State’s Attorney’s Office asserted that the\n\nforegoing categories fell into various exemptions under section 7 of the Act (5 ILCS 140/7 (West\n\n2018)) and were thus, exempt from disclosure.\n\n¶5 Mr. Fields then filed a complaint in the circuit court of Cook County, alleging that the Cook\n\nCounty State’s Attorney’s Office was in violation of the Act when it withheld, without adequate\n\nexplanation, the following categories: (1) case name; (2) case number; (3) relocation number; (4)\n\ndate of entry; (5) ASA requester; (6) approval; (7) check/cash fee amount paid; (8) emergency\n\nliving expenses paid; (9) hotel expenses paid; (10) moving expenses paid; (11) rent monies paid;\n\n(12) security deposit monies paid; and (13) transportation monies.\n\n¶6 The Cook County State’s Attorney’s Office answered Mr. Fields’ complaint by asserting\n\nfour affirmative defenses under sections 7(1)(c), 7(1)(d)(i), 7(1)(d)(iv), and 7(1)(d)(vi) of the Act.\n\nSpecifically, the Cook County State’s Attorney’s Office averred that the withheld categories fell\n\nunder the exemptions of: (1) unwarranted invasion of personal privacy; (2) interference with\n\npending or actually and reasonably contemplated law enforcement proceedings conducted by any\n\nlaw enforcement or correctional agency that is the recipient of the request; (3) disclosure would\n\nreveal the identity of a confidential source; or (4) would endanger the life or physical safety of law\n\n -3-\n\fNo. 1-21-0673\n\nenforcement personnel or any other person, respectively. 5 ILCS 140/7(1)(c), 7(1)(d)(i),\n\n7(1)(d)(iv), 7(1)(d)(vi) (West 2018). In conjunction with its answer, the Cook County State’s\n\nAttorney’s Office filed two affidavits from two employees, one from Lori Smith, the director of\n\nthe Victim Witness Program, and the other from Martha Jimenez, the supervisor of Municipal\n\nLitigation and the Freedom of Information Act officer for the Cook County State’s Attorney’s\n\nOffice.\n\n¶7 The affidavit of Lori Smith gave a detailed description of her role in the Victim Witness\n\nProgram and the Victim/Witness Relocation Program Unit. It stated that the Victim/Witness\n\nRelocation Program Unit coordinates relocation for victims or witnesses in cases in which those\n\nindividuals are facing an imminent threat of danger to themselves, their family, or their property.\n\nThe relocation process begins when a victim or witness has been threatened. Once, the victim or\n\nwitness files a police report, the Assistant State’s Attorney assigned to the original charged\n\ncriminal case refers the threatened individual to the Victim/Witness Program. Ms. Smith’s\n\naffidavit explained that the victim or witness must first secure a residence; then, the\n\nVictim/Witness Relocation Program Unit sends money directly to the landlord, hotel, or\n\nreimburses the victim or witness upon receiving receipts regarding the expenses such as gas or an\n\napartment. The individuals within the relocation program are victims or witnesses who either\n\nreceived a direct threat from the defendant in the charged case or are a confidential source or\n\nwitness in a high-profile case. Lori Smith’s affidavit attested that, in response to Mr. Fields’ request\n\nunder the Act, she performed the search herself with the assistance of the information technology\n\nunit of the Cook County State’s Attorney’s Office. She stated by affidavit, that she provided\n\nmonthly expense reports from January 1999 to November 2019, which included the following\n\ncategories: check/cash fee; emergency living expenses; hotel expenses; moving expenses; rent;\n\n -4-\n\fNo. 1-21-0673\n\nsecurity deposit; and transportation. The affidavit did not mention any exemptions or withholding\n\nof information pursuant to any exemptions.\n\n¶8 The affidavit of Martha Jimenez stated that she oversaw the day-to-day handling of\n\nrequests made pursuant to the Act and, in particular, handled the request of Mr. Fields in this case.\n\nThe affidavit attested that she instructed Ms. Smith to produce monthly expense reports and\n\nwithhold information which could be a personal identifier or could become a personal identifier in\n\nconjunction with the other information requested. Ms. Jimenez stated that she made that decision\n\nbased on sections 7(1)(b), 7(1)(c), 7(1)(d)(i), 7(1)(d)(iv), and 7(1)(d)(vi) of the Act. 5 ILCS\n\n140/7(1)(b), 7(1)(c), 7(1)(d)(i), 7(1)(d)(iv), 7(1)(d)(vi) (West 2018). The affidavit did not state\n\nhow the withheld categories of information fit within the exemptions identified.\n\n¶9 On June 9, 2020, Mr. Fields filed a motion for summary judgment arguing that the withheld\n\ninformation should be released and that the Cook County State’s Attorney’s Office should release\n\nan index of the withheld records, giving a description of the contents of each document withheld\n\nand a statement regarding the basis of the exemption for each withheld document, either before or\n\nafter an in camera inspection. 1 On August 10, 2020, the Cook County State’s Attorney’s Office\n\nfiled its own motion for summary judgment, arguing that the withheld categories were properly\n\nredacted and exempt from disclosure. The motion specifically argued that the categories of case\n\nname; case number; date of entry; and names of Assistant State’s Attorney requesters, when\n\n\n\n\n 1\n An in camera inspection or review is a procedure where the trial court reviews documents\n privately in chambers or in a courtroom, devoid of spectators, to determine if the\n documents are admissible or able to be disclosed.\n\n -5-\n\fNo. 1-21-0673\n\ncombined, allowed for the identification of victims and witnesses, thereby making them unique\n\nidentifiers under sections 7(1)(b) and 7(1)(c) of the Act.\n\n¶ 10 The Cook County State’s Attorney’s Office’s motion for summary judgment further\n\nclaimed that since witness names are part of the court record, and therefore public information,\n\nthat someone needed only look up the public docket to match the withheld categories and\n\ndetermine the particular witness who requested relocation and what financial assistance they\n\nreceived. The Cook County State’s Attorney’s Office, accordingly, contended that the release of\n\nthe relocation expenses provided personal financial information when linked to a specific person.\n\nUnder those circumstances, the Cook County State’s Attorney’s Office argued that providing the\n\nwithheld information would constitute an unwarranted invasion of personal privacy, since each\n\nwitness or victim in the relocation program faces an “imminent threat” and providing any\n\ninformation which undermines their security would be an invasion of their personal privacy. Under\n\nthe exemption in section 7(1)(d)(i) of the Act, the Cook County State’s Attorney’s Office asserted\n\nthat if witnesses knew that their request for relocation was made public, it would impact the\n\ncommunity’s and future witnesses’ willingness to work with law enforcement or law enforcement\n\nproceedings and result in the public having no confidence in the Cook County State’s Attorney’s\n\nOffice’s ability to keep them safe. The motion argued that section 7(1)(d)(iv) of the Act applied to\n\nMr. Fields’ request since case number, case name, and ASA requester are uniquely linked to\n\nwitnesses who requested relocation, and in some cases, those witnesses are confidential sources.\n\nLastly, the motion contended that an exemption under section 7(1)(d)(vi)of the Act also applied.\n\nIt argued that that section of the Act exempts any information that would “endanger the life or\n\nphysical safety of law enforcement personnel or any other person,” because each victim or witness\n\n\n\n -6-\n\fNo. 1-21-0673\n\nin the relocation program has been threatened and faces an imminent danger to their bodily safety,\n\nthe safety of their family, or the safety of their property.\n\n¶ 11 On September 21, 2020, Mr. Fields filed his response to the Cook County State’s\n\nAttorney’s cross-motion for summary judgment. In the response, Mr. Fields argued the Cook\n\nCounty State’s Attorney’s Office’s evidence did not support its claims of exemption under the Act\n\nand that its claims were vague, sweeping, and conclusory. The response stated the affidavits did\n\nnot discuss the methodology that was employed to determine which categories would be withheld.\n\n¶ 12 On June 2, 2021, the trial court issued its order regarding the cross-motions for summary\n\njudgment. Nothing in the record before us indicates that the court conducted a hearing on the\n\nmotions prior to its written order. The court granted the Cook County State’s Attorney’s motion\n\nfor summary judgment and denied Mr. Fields’ motion for summary judgment. The court stated\n\nthat the Cook County State’s Attorney’s Office sufficiently proved that the documents and\n\ncategories withheld from Mr. Fields’ request fell into each of the claimed exemptions. On June 11,\n\n2021, Mr. Fields filed a notice of appeal.\n\n¶ 13 ANALYSIS\n\n¶ 14 We note that we have jurisdiction to consider this matter since Mr. Fields filed a timely\n\nnotice of appeal following the trial court’s judgment denying his motion for summary judgment\n\nand granting the Cook County State’s Attorney’s Office’s motion for summary judgment. Ill. S.\n\nCt. R. 303 (eff. July 1, 2017).\n\n¶ 15 On appeal, the issue before us is whether the trial court erred in granting summary judgment\n\nin favor of the Cook County State’s Attorney’s Office. Mr. Fields argues that the Cook County\n\nState’s Attorney’s Office failed to meet its burden in the trial court which would have established\n\nthat each of the withheld categories fit into the claimed exemptions under section 7 of the Act. He\n\n -7-\n\fNo. 1-21-0673\n\nargues that there was no evidence before the court which could establish that the withheld\n\ninformation could lead to the identification of any witness, let alone in a specific case. Therefore,\n\nhe claims that the trial court erred in granting summary judgment in favor of the Cook County\n\nState’s Attorney’s Office. He asks us to vacate that judgment and remand this case to the trial\n\ncourt for further proceedings.\n\n¶ 16 “Summary judgment is appropriate when there are no genuine issues of material fact and\n\nthe moving party is entitled to judgment as a matter of law.” Outboard Marine Corp. v. Liberty\n\nMutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Our review of a trial court's summary judgment\n\nruling is de novo. Dumke v. City of Chicago, 2013 IL App (1st) 121668, ¶ 11.\n\n¶ 17 Here, the trial court granted summary judgment on the ground that the information\n\nwithheld from Mr. Fields’ request under the Act by the Cook County State’s Attorney’s Office\n\nwas exempt. “The [Freedom of Information Act’s] purpose is to open governmental records to the\n\nlight of public scrutiny.” Day v. City of Chicago, 388 Ill. App. 3d 70, 73 (2009). “Public records\n\nare presumed to be open and accessible under [the Act] and the exemptions are to be read\n\nnarrowly.” National Ass’n of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill.\n\nApp. 3d 1, 11 (2010). “If the public body seeks to invoke one of the exemptions in section 7 as\n\ngrounds for refusing disclosure, it is required to give written notice specifying the particular\n\nexemption claimed to authorize the denial.” Lieber v. Board of Trustees of Southern Illinois\n\nUniversity, 176 Ill. 2d 401, 408 (1997). If the party requesting disclosure seeks to challenge the\n\npublic body’s denial in the trial court, the burden is on the public body to prove that “the records\n\nin question fall within the exemption it has claimed.” Illinois Education Ass’n v. Illinois State\n\nBoard of Education, 204 Ill. 2d 456, 464 (2003). “To meet this burden and to assist the trial court\n\nin making its determination, the agency must provide a detailed justification for its claim of\n\n -8-\n\fNo. 1-21-0673\n\nexemption, addressing the requested documents specifically and in a manner allowing for adequate\n\nadversary testing.” (Emphasis in original.) Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530,\n\n537 (1989).\n\n¶ 18 The trial court “shall conduct such in camera examination of the requested records as it\n\nfinds appropriate to determine if such records or any part thereof may be withheld under any\n\nprovision of this Act.” 5 ILCS 140/11(f) (West 2018). Courts of review have interpreted that\n\nsection of the Act to mean that the trial court need not conduct an in camera inspection “where the\n\npublic body meets its burden of showing that the statutory exemption applies by means of\n\naffidavits.” Illinois Education Ass’n, 204 Ill. 2d at 469. However, affidavits alone are not sufficient\n\nif “the public body’s claims are conclusory, merely recite statutory standards, or are too vague or\n\nsweeping.” Illinois Education Ass’n, 204 Ill. 2d at 469.\n\n¶ 19 In this case, the Cook County State’s Attorney’s Office in its motion for summary judgment\n\nand affidavits emphasized the danger to witnesses and victims if their identity or any information\n\nregarding their current location was disclosed. The affidavit from Lori Smith was very detailed in\n\nits description of the Victim/Witness Relocation Program Unit, its process in relocating victims or\n\nwitnesses, and the imminent threat to those individuals. We note from the information that it is\n\nabundantly clear that, if the disclosure was made in a manner that disclosed the names of witnesses\n\nor victims and their locations, they could be in imminent danger. It is also evident that the\n\ndisclosure of information which puts these individuals in danger would erode public trust in the\n\nlaw enforcement agencies involved.\n\n¶ 20 However, while the Cook County State’s Attorney’s Office details the danger that would\n\ncome from disclosure of the identities of the witnesses or victims, it fails to make any attempt to\n\nshow the nexus between the withheld categories and the identification of the witnesses and victims\n\n -9-\n\fNo. 1-21-0673\n\nin the relocation program. We can divine the nexus regarding potential identification of individuals\n\nin the program from the withheld categories of: case name; case number; date of the entry of\n\npayment; Assistant State’s Attorney who requested the payment; and payment approval. However,\n\nwithout more information, there are certain categories for which we cannot determine how sharing\n\nthe requested information would lead to identification of individuals in the program. For example,\n\nit is unclear how disclosing the amount of money paid for various expenses without any additional\n\ninformation would establish the nexus needed to reveal the identity of individuals in the program.\n\nWe note that the crux of the argument advanced by the State’s Attorney’s Office was directed to\n\nthe protection of personal identifying data which could lead to disclosing individual identities of\n\nvictims and witnesses. Our review of the affidavits proffered by the Cook County State’s\n\nAttorney’s Office’s, in support of the various exemptions claimed for the information it withheld,\n\nshowed that they were insufficient and did not establish the required connections between the\n\naffidavits and the withheld information. That left the trial court to speculate as to whether the\n\naffidavits fell within the claimed exceptions. While we recognize the trial court’s inclination to\n\ndraw inferences from the affidavits provided by the State’s Attorney’s Office, given the serious\n\nnature of the harm that could occur if identities were disclosed, the court should not rely on mere\n\ntalisman recitation of phrases such as “imminent danger” to relieve a public body of its burden to\n\nshow that the invoked exemption applies. See Illinois Education Ass’n, 204 Ill. 2d at 470 (stating\n\na public body may not simply state certain words or phrases as “some talisman, the mere utterance\n\nof which magically casts a spell of secrecy over the documents at issue”). Instead, “the public body\n\ncan meet its burden only by providing some objective indicia that the exception is applicable under\n\nthe circumstances.” (Emphasis in original). Illinois Education Ass’n, 204 Ill. 2d at 470.\n\n¶ 21 Importantly, summary judgment is only appropriate when the affidavits show with\n\n - 10 -\n\fNo. 1-21-0673\n\n“reasonable specificity why the documents fall within the claimed exception and are sufficient to\n\nallow adversarial testing.” Illinois Education Ass’n, 204 Ill. 2d at 470-71. That specification is\n\nabsent from the affidavits produced by the Cook County State’s Attorney’s Office in this case. The\n\naffidavits discuss the documents and the process collectively but do not show with any specificity\n\nhow the disclosure of the categories, individually, reveal a witness’ or victim’s identity. This is\n\nespecially true of the categories which we highlighted as lacking the nexus needed for\n\nidentification and disclosure. Without reasonably detailed affidavits, the trial court should have\n\nconducted an in camera review of the requested documents to determine whether the material fell\n\nwithin the exemptions and then order any necessary redactions to the documents. Illinois\n\nEducation Ass’n, 204 Ill. 2d at 472. Stated another way, the record before us does not contain a\n\nsufficient basis for the trial court to have disposed of the case via summary judgment. Whether the\n\nwithheld information for each and every category fell within an exemption under the Act is clearly\n\na material question. Therefore, granting summary judgment in favor of the Cook County State’s\n\nAttorney’s Office was an error. Accordingly, we vacate that judgment and remand the case for\n\nfurther proceeding, which will allow the trial court to consider whether the State’s Attorney’s\n\nOffice has met its burden of establishing the necessary connection between the statutory provision,\n\nthe requested information, and potential identification of protected individuals.\n\n¶ 22 Thus, on remand, the trial court should conduct an in camera review of the documents in\n\nquestion. In its review, it should consider the exemptions claimed by the Cook County State’s\n\nAttorney’s Office and order the redaction of any information that falls under an appropriate\n\nexemption. See Illinois Education Ass’n, 204 Ill. 2d at 472. We recommend that the trial court be\n\nguided by two considerations. First, the court should narrowly construe the exemption when\n\nreviewing the documents, balancing the public policy favoring open and accessible disclosure of\n\n - 11 -\n\fNo. 1-21-0673\n\ngovernment documents with the need to keep the individuals in the program safe in order to\n\nmaintain public confidence in the program. Second, the court should keep in mind that the burden\n\non the Cook County State’s Attorney’s Office must be met in accordance with established\n\nprinciples of Illinois law. That burden cannot be met by merely stating the danger inherent in the\n\ndisclosure of the victims’ or witnesses’ identities as the Cook County State’s Attorney’s Office\n\nattempted to do. While the Cook County’s State’s Attorney did not meet its burden in its affidavits,\n\nwe make no finding on whether the Cook County’s State’s Attorney’s Office would be able to do\n\nso if they complied with Illinois precedent. That is for the trial court to decide on remand. We note\n\nthat in his complaint, Mr. Fields requested that the Cook County State’s Attorney’s Office provide\n\nan index of withheld information. The trial court denied that request given its disposition of the\n\nmatter. However, on remand, the trial court may want to revisit that request, as an index would:\n\n(1) detail the nature or contents of each document withheld, without disclosing the information\n\nwhich the Cook County State’s Attorney’s Office asserts is exempt; and (2) contain a statement of\n\nthe exemption or exemptions claimed for each such deletion or document withheld. Such a process\n\nmight be helpful and expedient for the trial court’s review.\n\n¶ 23 Accordingly, we vacate the trial court’s order granting summary judgment to the Cook\n\nCounty State’s Attorney’s Office and denying summary judgment for Mr. Fields. We, therefore,\n\nremand this case to the trial court to conduct an in camera inspection of the records in question,\n\nconsistent with this order.\n\n¶ 24 CONCLUSION\n\n¶ 25 For the foregoing reasons, we vacate the judgment of the circuit court of Cook County\n\ngranting the Cook County State’s Attorney’s Office’s motion for summary judgment and denying\n\n\n\n - 12 -\n\fNo. 1-21-0673\n\nMr. Fields’ motion for summary judgment. We remand the case to the circuit court for an in\n\ncamera review consistent with this order.\n\n¶ 26 Vacated and remanded with directions.\n\n\n\n\n - 13 -\n\f"} {"dedup_key":"2022 IL App (1st) 210715","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (1st) 210715","case_name":"Ballew v. Chicago Police Department","court_level":"Appellate","appellate_district":"1st","year":2022,"county":"Cook","appellate_docket":"1-21-0715","circuit_docket":"19-CH-7441","published":1,"authoring_justice":"Gordon","statute":["FOIA"],"exemptions_cited":["7(1)(d)(i)"],"public_body":"Chicago Police Department","requesting_party":"Jonathan Ballew","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the trial court's judgment, holding that the Chicago Police Department met its burden of proving by clear and convincing evidence that the requested records were exempt from disclosure under FOIA because they pertained to an ongoing investigation and their release would obstruct that investigation. The court found the department's affidavit provided sufficient detail to allow for adversary testing, distinguishing it from cases relying on mere sweeping generalities.","best_text_source":"Court Opinions - FOIA/Ballew v. Chicago Police Department, 2022 IL App (1st) 210715.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:40.170798","site_category":"Police & Investigative Records","date_decided":"2022-08-17","site_url":"/cases/2022%20IL%20App%20(1st)%20210715/","text_url":"/case-text/2022%20IL%20App%20(1st)%20210715.txt","full_text":" Digitally signed\n by Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2023.08.04\n 10:02:04 -05'00'\n\n\n\n Ballew v. Chicago Police Department, 2022 IL App (1st) 210715\n\n\n\nAppellate Court JONATHAN BALLEW, Plaintiff-Appellant, v. THE CHICAGO\nCaption POLICE DEPARTMENT, Defendant-Appellee.\n\n\n\nDistrict & No. First District, Third Division\n No. 1-21-0715\n\n\n\nFiled August 17, 2022\n\n\n\nDecision Under Appeal from the Circuit Court of Cook County, No. 19-CH-7441; the\nReview Hon. Raymond W. Mitchell, Judge, presiding.\n\n\n\nJudgment Affirmed.\n\n\nCounsel on Joshua Burday, Matthew Topic, Josh Loevy, Merrick Wayne, and\nAppeal Shelley Geiszler, of Loevy & Loevy, of Chicago, for appellant.\n\n Celia Meza, Corporation Counsel, of Chicago (Myriam Zreczny\n Kasper, Suzanne M. Loose, Tara D. Kennedy, Elizabeth Mary Tisher,\n and Sara K. Hornstra, Assistant Corporation Counsel, of counsel), for\n appellee.\n\n\n\nPanel PRESIDING JUSTICE GORDON delivered the judgment of the\n court, with opinion.\n Justices McBride and Burke concurred in the judgment and opinion.\n\f OPINION\n\n¶1 Jonathan Ballew, a reporter for an independent news organization, filed a complaint against\n the Chicago Police Department (CPD) alleging that it had failed to comply with its obligation\n under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2020)) to produce\n documents and videos relating to a homicide that occurred in Chicago in 2018. The CPD had\n disclosed certain redacted records, but claimed that other records were exempt from disclosure\n due to the ongoing investigation regarding the homicide at issue. To explain why the records\n were exempt under section 7(1)(d)(i) and (vii) of the FOIA (5 ILCS 140/7(1)(d)(i), (vii) (West\n 2020)), the CPD submitted the affidavit of the investigator in charge of overseeing this\n investigation. The trial court found the investigator’s affidavit provided clear and convincing\n evidence that disclosure of the records at issue would interfere with the ongoing investigation.\n The trial court entered summary judgment in favor of CPD and against plaintiff and\n subsequently denied plaintiff’s motion to reconsider. Plaintiff appealed.\n\n¶2 I. BACKGROUND\n¶3 On March 27, 2019, plaintiff filed a FOIA request with the CPD regarding a homicide that\n occurred on October 1, 2018. Plaintiff requested “all investigative records including videos,\n photographs, police body camera footage, POD camera footage, interviews, documents and\n reports in any format” relating to the homicide.\n¶4 On April 22, 2019, the CPD partially granted plaintiff’s request. The CPD provided\n plaintiff with a redacted copy of the original case incident report but otherwise denied the\n request, stating that releasing any other documents or videos “would disclose information that\n would compromise and/or obstruct the investigators’ ability to determine the veracity of the\n statements of said incident, thereby affecting the integrity and outcome of the investigation.”\n¶5 On June 20, 2019, plaintiff filed a three-count complaint against the CPD alleging that the\n CPD had willfully and intentionally violated the FOIA in failing to produce records and failing\n to perform an adequate search. 1\n¶6 On August 1, 2019, CPD filed its answer and affirmative defenses to plaintiff’s complaint.\n It argued that the records it did not produce pursuant to plaintiff’s FOIA request were exempt\n from production under section 7 of the FOIA. 5 ILCS 140/7 (West 2020). That is, CPD argued\n that, at the time the records were requested, there was an open and ongoing investigation\n regarding this matter and “viewing the materials could alter the testimony of witnesses who\n had not yet been interviewed.” This, according to CPD, created a “substantial likelihood of\n irreparable harm undermining the integrity of the investigation.” The relevant exemptions\n appear in two subsections of section 7 of the FOIA: section 7(1)(d)(i) and 7(1)(d)(vii). These\n two subsections exempt\n “[r]ecords in the possession of any public body created in the course of administrative\n enforcement proceedings, and any law enforcement or correctional agency for law\n enforcement purposes, but only to the extent that disclosure would:\n\n\n\n\n 1\n There is no indication in the record that plaintiff requested in camera review by the trial court.\n\n -2-\n\f (i) interfere with pending or actually and reasonably contemplated law\n enforcement proceedings conducted by any law enforcement or correctional agency\n that is the recipient of the request[ ]\n ***\n (vii) obstruct an ongoing criminal investigation by the agency that is the\n recipient of the request.” 5 ILCS 140/7(1)(d)(i), (vii) (West 2020).\n¶7 On August 22, 2019, plaintiff answered defendant’s affirmative defenses, denying that any\n of the above exemptions to disclosure apply in this case.\n¶8 Subsequently, the parties filed cross-motions for summary judgment. On October 10, 2019,\n plaintiff filed his motion for partial summary judgment. Plaintiff argued that defendant was\n under an obligation to prove, by clear and convincing evidence, that anything withheld from\n disclosure under the statute was exempted. Additionally, plaintiff requested defendant to\n produce an index of each redacted or withheld record, pursuant to section 11(e) of the FOIA,\n which reads:\n “On motion of the plaintiff, prior to or after in camera inspection, the court shall order\n the public body to provide an index of the records to which access has been denied.\n The index shall include the following:\n (i) A description of the nature or contents of each document withheld, or each\n deletion from a released document, provided, however, that the public body shall\n not be required to disclose the information which it asserts is exempt; and\n (ii) A statement of the exemption or exemptions claimed for each such deletion\n or withheld document.” 5 ILCS 140/11(e) (West 2020).\n¶9 On February 13, 2020, defendant filed its motion for leave to file its motion for summary\n judgment instanter. In its cross-motion for summary judgment filed therewith, defendant\n argued that the release of the requested materials would interfere with the pending\n investigations into this homicide and another purportedly related homicide. In support of its\n motion, defendant submitted the affidavit of Lieutenant John Roberts, who was responsible for\n overseeing the investigation of the homicide. Roberts averred that “releasing any of the\n requested materials prematurely would materially impact the investigation, especially\n considering that investigators are still trying to identify witnesses.” He stated that a premature\n release would make it difficult to determine the veracity of subsequent witnesses’ statements.\n He also averred that the release of information could place the lives of witnesses in danger.\n¶ 10 On September 28, 2020, the trial court issued a written order (1) denying plaintiff’s motion\n for partial summary judgment, (2) ordering defendant to produce an index of each redacted or\n withheld record pursuant to FOIA section 11(e), and (3) granting defendant’s motion for\n summary judgment. The trial court found that Roberts’s affidavit was sufficiently clear and\n convincing, as required by the statute. Specifically, it relied on Roberts’s attestation that\n “releasing information would make determining whether subsequently identified witnesses\n were authentic and legitimate difficult,” that the violent crimes appeared to share the same\n hate-based motivation and execution-style modus operandi, and that “an ‘investigation’ is\n ongoing and underway within the meaning of FOIA.” Moreover, the court distinguished the\n cases cited by plaintiff, as they both dealt with requests in homicide investigations that were\n 50 and 17 years old, respectively. In those cases, the courts found affidavits conclusory because\n the affiants failed to explain how investigations in cases that old are still ongoing. In this case,\n\n\n -3-\n\f the trial court found that Roberts had shown that this was an ongoing investigation and that\n releasing information would interfere with it.\n¶ 11 Plaintiff subsequently filed a motion to reconsider, which the trial court denied. This timely\n appeal of the trial court’s denial of plaintiff’s motion to reconsider follows.\n\n¶ 12 II. ANALYSIS\n¶ 13 On appeal, plaintiff argues that there is no blanket exception for records in an ongoing case\n and that CPD was required to prove by clear and convincing evidence, through detailed\n affidavits, that each withheld record was exempt.\n¶ 14 We review summary judgment rulings de novo. Stern v. Wheaton-Warrenville Community\n Unit School District 200, 233 Ill. 2d 396, 404 (2009). De novo consideration means we perform\n the same analysis that a trial judge would perform. Country Mutual Insurance Co. v. Under\n Construction & Remodeling, Inc., 2021 IL App (1st) 210600, ¶ 23.\n¶ 15 A trial court may grant summary judgment only “if the pleadings, depositions, and\n admissions on file, together with the affidavits, if any, show that there is no genuine issue as\n to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735\n ILCS 5/2-1005(c) (West 2020). The trial court considers these documents and exhibits in the\n light most favorable to the nonmoving party. Home Insurance Co. v. Cincinnati Insurance Co.,\n 213 Ill. 2d 307, 315 (2004).\n¶ 16 “Summary judgment is a drastic measure and should only be granted if the movant’s right\n to judgment is clear and free from doubt.” Outboard Marine Corp. v. Liberty Mutual Insurance\n Co., 154 Ill. 2d 90, 102 (1992). However, “[m]ere speculation, conjecture, or guess is\n insufficient to withstand summary judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill.\n App. 3d 313, 328 (1999). The party moving for summary judgment bears the initial burden of\n proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007). The movant may meet his burden\n of proof either by affirmatively showing that some element of the case must be resolved in his\n favor or by establishing “ ‘that there is an absence of evidence to support the nonmoving\n party’s case.’ ” Nedzvekas, 374 Ill. App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S.\n 317, 325 (1986)). “ ‘The purpose of summary judgment is not to try an issue of fact but *** to\n determine whether a triable issue of fact exists.’ ” Schrager v. North Community Bank, 328 Ill.\n App. 3d 696, 708 (2002) (quoting Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001)). We may\n affirm on any basis appearing in the record, whether or not the trial court relied on that basis\n or its reasoning was correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).\n¶ 17 The purpose of the FOIA is to open governmental records to the light of public scrutiny.\n Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373, 378\n (1989). “Although the FOIA outlines several exemptions to disclosure, those exemptions are\n read narrowly.” Day v. City of Chicago, 388 Ill. App. 3d 70, 73 (2009). “Thus, when a public\n body receives a proper request for information, it must comply with that request unless one of\n the narrow statutory exemptions set forth in section 7 of the Act applies.” Illinois Education\n Ass’n v. Illinois State Board of Education, 204 Ill. 2d 456, 463 (2003). If the public body\n contesting disclosure can prove that a requested document falls within a category specifically\n enumerated in FOIA section 7, “the document shall be per se exempt from inspection and\n copying and ‘no further inquiry by the court is necessary.’ ” Chicago Alliance for\n Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 199 (2004) (quoting Lieber v.\n Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 408 (1997)). Under the per se\n\n -4-\n\f analysis, any documents that fit within one of the specifically enumerated statutory exemptions\n are absolutely exempt from disclosure. Copley Press, Inc. v. Board of Education for Peoria\n School District No. 150, 359 Ill. App. 3d 321, 324 (2005).\n¶ 18 The public body asserting an exemption must prove by clear and convincing evidence that\n the withheld records are exempt. 5 ILCS 140/1.2 (West 2020). The public body must provide\n a detailed justification for its claim of exemption and address the requested documents\n specifically and in a manner that allows for adequate adversary testing. Illinois Education\n Ass’n, 204 Ill. 2d at 464.\n¶ 19 The evidence may be presented in the form of an affidavit. “A public body may meet its\n burden of proving a statutory exemption through affidavits, in which case the court need not\n review the documents at issue in camera.” Kelly v. Village of Kenilworth, 2019 IL App (1st)\n 170780, ¶ 23 (citing Illinois Education Ass’n, 204 Ill. 2d at 469). Affidavits are accorded a\n presumption of good faith. BlueStar Energy Services, Inc. v. Illinois Commerce Comm’n, 374\n Ill. App. 3d 990, 997 (2007). “Affidavits are insufficient if the public body presents claims that\n are conclusory, overly vague or sweeping, or merely recite statutory standards.” Kelly, 2019\n IL App (1st) 170780, ¶ 24 (citing Day, 388 Ill. App. 3d at 74).\n¶ 20 In the case at bar, defendant relies on section 7(1)(d)(i) and 7(1)(d)(vii), which specifically\n exempts records that, if disclosed, would “interfere with pending or actually and reasonably\n contemplated law enforcement proceedings conducted by any law enforcement or correctional\n agency that is the recipient of the request” or “obstruct an ongoing criminal investigation by\n the agency that is the recipient of therequest,” respectively. In support of this contention,\n defendants submitted the affidavit of Lieutenant John Roberts, the investigator in charge of the\n homicide investigation. Our task is to determine whether Roberts’s affidavit proves that the\n withheld documents fall within at least one of the two above exempted categories.\n¶ 21 In his affidavit, Roberts explained that the homicide investigation was ongoing and that the\n offender remained at large. Moreover, he stated that the outcome of the investigation may be\n jeopardized if details of the investigation, investigative technique, and evidence were to be\n released. The homicide underlying the FOIA request in the case at bar appears to be linked to\n another unsolved homicide, and both appear to be hate-driven with similar modi operandi.\n Thus, according to Roberts, “releasing any of the requested materials before the investigation\n was complete would materially impact the investigation, especially considering that the\n investigators were still trying to identify witnesses, and premature release would make the\n investigators’ determination of the veracity of any subsequent witnesses much more difficult.”\n Finally, he explained that, in cases that have received significant media interest, “it is critical\n that the investigators be able to determine whether a purported witnesses actually has\n something to further aid the investigation, and is not simply using publically [sic] available\n information in a misguided attempt to aid or otherwise mislead the investigators, wasting finite\n investigative resources.”\n¶ 22 We find Roberts’s affidavit provides clear and convincing evidence that the withheld\n records are exempt under both section 7(1)(d)(i) and 7(1)(d)(vii). First, Roberts has explained\n that the investigation is open and ongoing, and “the offender remains unidentified and at large.”\n According to Roberts, “assigned investigators are still attempting to identify additional\n witnesses, collect additional evidence and apprehend the suspect.” These statements satisfy the\n “pending” and “ongoing” language of the exemptions found in section 7(1)(d)(i) and\n 7(1)(d)(vii).\n\n -5-\n\f¶ 23 Second, Roberts has explained how disclosure of the withheld documents would interfere\n with and obstruct the investigation. According to Roberts, releasing the withheld documents\n would mean releasing information that would make it more difficult for investigators to\n determine the veracity of statements of any potential witnesses who come forth after the\n release. This is especially the case in situations such as this one that have attracted significant\n coverage by the media; as more members of the public learn about the case, the possibility of\n obstructive behavior intended to misguide investigative efforts increases. Finally, as the\n homicide in this case is potentially linked with another (unsolved) violent homicide, release of\n information could place witnesses in danger or deter potential witnesses from coming forth.\n¶ 24 Plaintiff argues that “there is no blanket exemption for records simply because an\n investigation is ongoing.” We agree. “Understandably, defendants would prefer to claim\n exemptions over their entire files rather than sift through thousands of documents to redact\n exempt matters and disclose whatever is left. Unfortunately for defendants, section 7(1)(d)\n itself does not authorize such a generic approach.” Kelly, 2019 IL App (1st) 170780, ¶ 39.\n However, nothing in the record in this case suggests that CPD has attempted to assert a blanket\n exemption. CPD has produced the original case incident report and explained, through the\n affidavit of the supervising investigator of the homicide regarding which documents have been\n requested, why the other responsive documents are exempt. There is nothing to indicate that\n CPD has refused to review all responsive records before asserting this exemption.\n¶ 25 Contrary to plaintiff’s argument, nothing in the cases he has cited mandates document-by-\n document explanations regarding exemption. In Kelly, this court held that FOIA recipients,\n which included local government and police at various levels, had not shown that the\n voluminous 20,000-page withheld records relating to a nearly 50-year-old unsolved homicide\n were exempt from disclosure. Kelly, 2019 IL App (1st) 170780. The FOIA recipient there\n argued that “disclosure would alert targets to the existence and nature of the investigation,\n allow prime suspects to tamper with evidence, discourage individuals from sharing information\n with investigators, and make it difficult to address leads and confessions.” Kelly, 2019 IL App\n (1st) 170780, ¶ 9. Moreover, “[g]oing through each page of the investigative file ‘could\n potentially require hundreds of hours to review, analyze and redact information.’ ” Kelly, 2019\n IL App (1st) 170780, ¶ 9. In that case, not only did the FOIA recipients provide a generic\n explanation of why the records are purportedly exempt but essentially admitted to not having\n even reviewed the records. Thus, it appears that the actual reason for withholding in that case\n was that the records were too burdensome to review. Here, the investigator has explained that\n the records are exempt because their release would obstruct an ongoing investigation, not\n because the records would be too burdensome to produce. Accordingly, that case is\n distinguishable from the case at bar.\n¶ 26 Day is distinguishable for a different reason. In that case, none of the affidavits submitted\n by the FOIA recipients in support of an exemption were found to establish that the investigation\n of a 17-year-old murder case was “ongoing,” as the affidavits stated only generally that the\n “ ‘investigation is still ongoing, as to certain aspects of the investigation other than Mr. Day’s\n arrest and conviction.’ ” Day, 388 Ill. App. 3d at 75-76. In other words, the suspect was\n apprehended, convicted, and had already served over a decade in prison for the murder at the\n time of the FOIA request. Moreover, none of the three affiants in that case explained in any\n detail how the release of any documents would have obstructed the investigation of the murder.\n Day, 388 Ill. App. 3d at 76. The court there found that the “sweeping generalities” of the\n\n\n -6-\n\f affidavits did not lend themselves to “ ‘adequate adversary testing.’ ” Day, 388 Ill. App. 3d at\n 77. In the case at bar, Roberts has established that the investigation is ongoing and has provided\n sufficient details that would lend themselves to adversary testing. For instance, Roberts could\n be questioned about whether there are ways to safeguard witnesses and potential witnesses\n such that their safety would not be compromised, should the withheld records in this\n investigation be released publicly.\n¶ 27 In sum, Roberts’s affidavit has shown that the investigation here is ongoing, and it\n explained how a premature release of records would obstruct the investigation. We find that\n CPD has met its burden in showing, by clear and convincing evidence, that the withheld\n records are exempt under the FOIA.\n\n¶ 28 III. CONCLUSION\n¶ 29 For the foregoing reasons, we affirm the trial court’s judgment.\n\n¶ 30 Affirmed.\n\n\n\n\n -7-\n\f"} {"dedup_key":"2022 IL App (1st) 211016-U","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (1st) 211016-U","case_name":"Annette Elmore v. City of Chicago, Board of Education","court_level":"Appellate","appellate_district":"1st","year":2022,"county":"Cook","appellate_docket":"1-21-1016","circuit_docket":"14 CH 18117","published":0,"authoring_justice":"Connors","statute":["FOIA"],"exemptions_cited":[],"public_body":"Board of Education of the City of Chicago","requesting_party":"Annette Elmore","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The court affirmed the summary judgment in favor of the defendant, finding that the Board of Education conducted an adequate search and disclosed all responsive documents in its possession. The court also rejected the plaintiff's claims regarding due process, perjury, and judicial bias.","best_text_source":"Court Opinions - FOIA/Elmore v. City of Chicago Board of Education, 2022 IL App (1st) 211016-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:40.170957","site_category":"Search & Production","date_decided":"2022-08-12","site_url":"/cases/2022%20IL%20App%20(1st)%20211016-U/","text_url":"/case-text/2022%20IL%20App%20(1st)%20211016-U.txt","full_text":" 2022 IL App (1st) 211016-U\n\n FIFTH DIVISION\n August 12, 2022\n\n Nos. 1-21-1016 & 1-21-1039 (cons.)\n\nNOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent\nby any party except in the limited circumstances allowed under Rule 23(e)(1).\n\n\n\n IN THE\n APPELLATE COURT OF ILLINOIS\n FIRST JUDICIAL DISTRICT\n\n\n\nANNETTE ELMORE, ) Appeal from the Circuit Court\n ) Cook County.\n Plaintiff-Appellant, )\n )\n v. ) No. 14 CH 18117\n )\nCITY OF CHICAGO, BOARD OF EDUCATION, )\n ) Honorable Pamela McLean\n ) Meyerson,\n Defendant-Appellee. ) Judge Presiding.\n\n\n JUSTICE CONNORS delivered the judgment of the court.\n Presiding Justice Delort and Justice Cunningham concurred in the judgment.\n\n ORDER\n\n¶1 Held: In response to FOIA requests, defendant conducted an adequate search and\n disclosed responsive documents in its possession; due process claims were\n forfeited; there was no showing of perjury; employees in the circuit court clerk’s\n office did not act illegally; failure of defendant’s attorneys to file appearances\n was not a basis for reversing the judgment; affirmed.\n\n¶2 Plaintiff, Annette Elmore, appeals pro se the circuit court’s rulings on summary judgment\n\nrelating to her cause of action under the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1\n\net seq. (West 2012)) against defendant, the Board of Education of the City of Chicago (Board),\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\nwhich runs Chicago Public Schools (CPS). On appeal, Elmore contends that 1) there was a\n\nquestion of fact about whether she was denied nonexempt records, 2) the circuit court incorrectly\n\nruled on her request for a document known as the Decision Support System 2 List (DS2 list), 3)\n\nshe was denied due process, 4) the circuit court relied on a provision of FOIA that was added after\n\nElmore filed her complaint, 5) the court should have made a finding of perjury against a Board\n\naffiant and considered Elmore’s motion to order perjury separately from a motion for summary\n\njudgment, 6) the circuit court improperly allowed the Board to present exhibits that were filed\n\nthree months after it filed a motion for summary judgment, 7) the Cook County clerk’s office\n\nillegally date-stamped exhibits, 8) it was improper for CPS to have seven attorneys come on and\n\noff the case, and four of the attorneys did not file an appearance, and 9) this court should disregard\n\na supplemental appendix that the Board filed on appeal. We affirm.\n\n¶3 I. BACKGROUND\n\n¶4 In 2011, Elmore was laid off from her position as a CPS teacher at Healy South High\n\nSchool, which was an alternative learning program conducted with the Illinois Department of\n\nCorrections. On November 10, 2014, Elmore filed a complaint under FOIA, alleging that the Board\n\ndenied her requests for various documents. Elmore’s requests included an unredacted copy of a\n\nDS2 list with the phrase “not recommended” next to her name and an “[e]thnic (racial) breakdown”\n\nof all hires from May 30, 2011, to October 15, 2013, at Jefferson and York Alternative High\n\nSchools, along with other information about educators who were hired at those schools. Elmore’s\n\ntheory was that although the Board stated that she was laid off due to a reallocation of funds, she\n\nwas actually laid off due to her ethnicity and age.\n\n¶5 Elmore filed numerous pleadings, and eventually the circuit court ordered Elmore to\n\nprovide a summary memo, which the court considered a motion for summary judgment. In that\n\n\n\n -2-\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\nmemo, Elmore stated in part that instead of producing an unredacted copy of the DS2 list, the\n\nBoard produced a CPS roster. Elmore had also not received the ethnic breakdown of all new\n\nEnglish and language arts hires at Jefferson and York schools, along with other information about\n\nthose hires.\n\n¶6 In response, the Board included a chart that listed each of Elmore’s 30 FOIA requests and\n\nits response to each. The Board asserted that it had provided documents in response to Elmore’s\n\nrequest for the DS2 list. As for Elmore’s request regarding Jefferson and York schools, the Board\n\nstated that it was unable to provide individual employee ethnicity “because the group is so small\n\n(6) providing a summary of the ethnicity would lead to identification of the employee.”\n\n¶7 On September 7, 2018, the circuit court denied Elmore’s motion for summary judgment.\n\nThe court noted that Elmore submitted both electronic and hard copies of the Board’s alleged\n\nresponses. According to the court, Elmore did not prove that the Board withheld responsive\n\ndocuments or that the Board’s responses were inadequate. It was not enough for Elmore to argue\n\nthat she was familiar with how the Board worked and she knew that the documents must exist. The\n\ncourt encouraged the parties to narrow their dispute.\n\n¶8 On July 9, 2019, the Board moved for summary judgment, stating that it had responded to\n\nElmore’s requests and provided responsive documents in its possession. Elmore failed to produce\n\nany evidence, other than her own conjecture, that the Board deliberately withheld documents or\n\nthat the documents pertaining to her requests actually existed. The Board also asserted that an\n\nemployee’s race is considered personal information that is not subject to FOIA. Appended to the\n\nBoard’s motion were copies of correspondence with Elmore and the documents that had been\n\nproduced.\n\n\n\n\n -3-\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\n¶9 Elmore responded and filed a cross-motion for summary judgment. In part, Elmore asserted\n\nthat the Board falsely claimed that she did not appear on the DS2 list. Elmore stated that the DS2\n\nlist was generated from an online reemployment application that she completed at the Board’s\n\ndirection. Among the attachments to Elmore’s response and motion was a document dated April\n\n27, 2011, and titled “IDOC/Healy SO,” which listed Elmore and 10 other teachers, their job titles,\n\nprogram areas, “Sr. Date[s],” and certifications.\n\n¶ 10 In reply and response, the Board noted that Elmore had filed actions in federal court based\n\non her discrimination claim. As part of the federal matters, the Board disclosed to Elmore multiple\n\ndocuments under seal that contained much of the material she later requested, including documents\n\nfrom the DS2 system.\n\n¶ 11 The Board also submitted affidavits from three employees who were familiar with various\n\naspects of Elmore’s FOIA requests. Andrew Mason, who was the Board’s managing FOIA officer,\n\naverred that the Board provided records to Elmore from the DS2 list on a CD in 2015. The Board\n\nalso tendered Elmore’s entire file as an act of goodwill. Mason further stated that the Board does\n\nnot release information based on race because that may likely lead to identifying individuals and\n\nthe release of that information may be an invasion of privacy. A search of English teachers at\n\nJefferson and York schools based on gender and ethnicity identified six people. The release of that\n\ninformation would personally identify those employees, violating FOIA. Craig Swanton, the\n\nBoard’s director of HRIT in information and technology services, averred in his affidavit that as\n\npart of the application process for teaching positions, there were four ratings that could be assigned\n\nto applicants after someone reviewed the application, resume, and responses to essay questions.\n\nThere were no records that Elmore ever completed the essay questions. Lauren Clair-McClellan,\n\nexecutive director of human resource operations for the Board, averred in her affidavit that in April\n\n\n\n -4-\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\n2011, she created a document known as Exhibit A as part of an analysis of teachers affected by\n\nthe reallocation of funds related to Healy South. The purpose of Exhibit A was to identify a\n\nteacher’s area of experience and seniority to help in redeployment efforts within the district.\n\nExhibit A was not attached to the affidavit.\n\n¶ 12 In further reply, Elmore noted in part that Exhibit A was not identified in Clair-McClellan’s\n\naffidavit and Elmore did not know what that document entailed.\n\n¶ 13 After a hearing, the court issued a written order on November 24, 2020, that granted in part\n\nand denied in part the cross-motions for summary judgment and stated in part as follows. The\n\nBoard produced evidence that it conducted a search and did not have the documents that pertained\n\nto certain requests. The Board submitted affidavits, response letters, and copies of the documents\n\nit produced, and Elmore did not refute the evidence of an adequate search. Further, the Board\n\nshowed by clear and convincing evidence that an exemption applied to the request for the ethnic\n\nbreakdown of certain hires. The Board made a compelling case that releasing racial information\n\nfor a group so small could reveal the identities of the subject employees. There was one exception\n\nto the Board’s showing that its search was adequate and all responsive, nonexempt documents\n\nwere produced—Exhibit A to Clair-McClellan’s affidavit. The court ordered the Board to produce\n\nExhibit A. Also, because Elmore’s complaint alleged that the Board’s failure to produce\n\ndocuments was willful and intentional, there was a genuine issue of material fact on the issue of\n\nwillfulness related to Exhibit A.\n\n¶ 14 On February 22, 2021, the Board moved for summary judgment as to Exhibit A. The Board\n\nstated that Exhibit A was an April 27, 2011, document that Elmore previously referenced in her\n\nown filings and was called the IDOC/Healy SOL. 1 The document was not responsive to Elmore’s\n\n\n The document itself has “IDOC/Healy SO” written at the top, but we will use the Board’s title of\n 1\n\n“IDOC/Healy SOL.”\n\n -5-\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\nFOIA requests, and so there was no delay or prejudice to her from not producing it. Regardless,\n\nthe IDOC/Healy SOL document was previously produced to Elmore, and she relied on that\n\ndocument in a summary judgment filing to prove the existence of other records. In addition to the\n\nIDOC/Healy SOL document, other documents appended to the Board’s motion included Elmore’s\n\nprevious FOIA requests, the documents produced in response, and previous filings in the instant\n\nand federal matters.\n\n¶ 15 Elmore filed a motion opposing a change in the Board’s counsel, stating in part that the\n\nlatest motion for summary judgment was filed by an attorney who had not filed an appearance and\n\nrefused to communicate with her. Elmore stated that seven attorneys had represented the Board,\n\nwhich was “a disgrace” and prejudiced her. Challenging the Board’s characterization of the\n\nIDOC/Healy SOL document, Elmore stated that the Board could not use a document that she\n\npreviously submitted, reformat it, and pass it off as Exhibit A.\n\n¶ 16 Elmore also responded to the Board’s motion for summary judgment as to Exhibit A.\n\nElmore stated that the Board’s filings did not indicate that a reasonable search was made for\n\nExhibit A, which CPS refused to produce and did not exist. Elmore also asserted that Clair-\n\nMcClellan’s affidavit was perjured because Clair-McClellan averred that Exhibit A was created in\n\nApril 2011 for teachers affected by a reallocation of funds, but the staff at Healy South was not\n\nlaid off until July 2011.\n\n¶ 17 In its reply filed on May 4, 2021, the Board again stated that Exhibit A was the IDOC/Healy\n\nSOL document, which Elmore previously received. The Board included a copy of a letter sent to\n\nElmore on December 18, 2020, that enclosed the IDOC/Healy SOL document.\n\n¶ 18 On May 21, 2021, Elmore filed a motion to strike the exhibits that the Board submitted as\n\npart of its reply. Elmore stated that the Board’s motion for summary judgment as to Exhibit A did\n\n\n\n -6-\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\nnot have any exhibits attached. Elmore also stated that the clerk’s office received filed exhibits\n\nfrom the Board, but did not inform the Board that its exhibits could not be accepted because they\n\nwere not filed with the motion for summary judgment. Elmore further alleged that the clerk’s office\n\nillegally date-stamped the Board’s submitted exhibits. The court denied Elmore’s motion on June\n\n11, 2021, and ordered the Board to mail Elmore a copy of its motion for summary judgment as to\n\nExhibit A with exhibits.\n\n¶ 19 On June 14, 2021, Elmore filed a motion to order perjury against Clair-McClellan because\n\nshe averred that Exhibit A was created in April 2011 for teachers affected by a reallocation of\n\nfunds, but none of the staff at Healy South were laid off in April 2011. Elmore asserted that Clair-\n\nMcClellan committed a Class 3 felony.\n\n¶ 20 At a hearing on July 20, 2021, the court noted that two motions were pending: CPS’s\n\nmotion for summary judgment as to Exhibit A and Elmore’s motion to order perjury. The court\n\ngranted the Board’s motion for summary judgment. The court stated that the IDOC/Healy SOL\n\ndocument matched the description of Exhibit A in Clair-McClellan’s affidavit. Based on all of the\n\ncircumstances, the IDOC/Healy SOL document was Exhibit A. Further, the Board was not willful\n\nand intentional when it initially did not attach the document to Clair-McClellan’s affidavit. It was\n\nalso shown that Elmore previously had this document and attached it to her own filings. Turning\n\nto Elmore’s motion, the court found that there was no showing of perjury and denied the motion.\n\nThe IDOC/Healy SOL document could have been created before the announcement that Healy\n\nSouth would close. The court noted that the order granting CPS’s motion for summary judgment\n\nand denying Elmore’s motion to order perjury was a final and appealable order that disposed of all\n\nmatters. The court also entered a written order consistent with its oral ruling.\n\n¶ 21 Elmore timely appealed.\n\n\n\n -7-\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\n¶ 22 II. ANALYSIS\n\n¶ 23 A. Elmore’s Motion for Summary Judgment\n\n¶ 24 We first consider Elmore’s contention that there was a question of fact about whether she\n\nwas denied open, nonexempt records. Elmore argues that CPS did not respond to six of her\n\nrequests, and the circuit court did not rule on or order discovery related to those records. Elmore\n\nfurther asserts that the circuit court did not enforce FOIA despite her summary memo, which was\n\ndeemed a motion for summary judgment. We construe Elmore’s argument to be that the circuit\n\ncourt incorrectly denied her motion for summary judgment.\n\n¶ 25 The purpose of FOIA is “ ‘to open governmental records to the light of public scrutiny.’ ”\n\nBetter Government Ass’n v. City of Chicago, 2020 IL App (1st) 190038, ¶ 12 (quoting Stern v.\n\nWheaton-Warrenville Community Unit School District 200, 233 Ill. 2d 396, 405 (2009)). The\n\nFOIA statute states that it is “the public policy of the State of Illinois that all persons are entitled\n\nto full and complete information regarding the affairs of government and the official acts and\n\npolicies of those who represent them as public officials and public employees consistent with the\n\nterms of this Act.” 5 ILCS 140/1 (West 2012). The FOIA statute also includes a list of exemptions\n\nfor certain documents that should not be disclosed. 5 ILCS 140/7 (West 2012); National Ass’n of\n\nCriminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 10 (2010). A public\n\nbody must comply with a proper FOIA request unless one of the exemptions applies. Illinois\n\nEducation Ass’n v. Illinois State Board of Education, 204 Ill. 2d 456, 463 (2003).\n\n¶ 26 “FOIA cases are typically and appropriately decided on motions for summary judgment.”\n\n(Internal quotation marks omitted.) Better Government Ass’n, 2020 IL App (1st) 190038, ¶ 9\n\n(quoting Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009)). “[S]ummary judgment requires the\n\nresponding party to come forward with the evidence it has—it is ‘the put up or shut up moment in\n\n\n\n -8-\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\na lawsuit.’ ” (Internal quotation marks omitted.) Parkway Bank & Trust Co. v. Korzen, 2013 IL\n\nApp (1st) 130380, ¶ 14 (quoting Eberts v. Goderstad, 569 F.3d 757, 767 (7th Cir. 2009)). Summary\n\njudgment is warranted if the pleadings, depositions, admissions on file, and any affidavits show\n\nthat there is no genuine issue of material fact and the moving party is entitled to judgment as a\n\nmatter of law. 735 ILCS 5/2-1005(c) (West 2012). Our review of summary judgment rulings is de\n\nnovo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Pro se\n\nlitigants are held to the same standards as licensed attorneys and must comply with the same rules.\n\nAmmar v. Schiller, DuCanto & Fleck, LLP, 2017 IL App (1st) 162931, ¶ 16.\n\n¶ 27 Elmore contends that CPS violated FOIA by not responding to six of her FOIA requests,\n\nbut she does not explain in her brief what those six requests were. Her complaint consisted of\n\nnumerous FOIA requests, and we will not assume which six of those requests are at issue on\n\nappeal. Further, Elmore does not articulate specific arguments about the adequacy of CPS’s search\n\nor whether CPS claimed improper exemptions as to those six requests—two key elements of a\n\nFOIA dispute. See Better Government Ass’n, 2020 IL App (1st) 190038, ¶ 32 (public body bears\n\nthe initial burden of showing its search was adequate when it determines there are no records\n\nresponsive to a request); BlueStar Energy Services, Inc. v. Illinois Commerce Comm’n, 374 Ill.\n\nApp. 3d 990, 995 (2007) (public body has the burden of proof at the trial level to establish that\n\ndocuments are exempt from disclosure). This court is not a repository into which a party may dump\n\nthe burden of research. In re Estate of Mivelaz, 2021 IL App (1st) 200494, ¶ 60. Also, an issue not\n\nclearly defined and sufficiently presented fails to satisfy the requirements of Illinois Supreme\n\nCourt Rule 341(h)(7) (eff. Oct. 1, 2020) and is forfeited. Atlas v. Myer Hoffman McCann, P.C.,\n\n2019 IL App (1st) 180939, ¶ 33. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2010) (argument must\n\ncontain the appellant’s contentions and the reasons for those contentions, with citation to authority\n\n\n\n -9-\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\nand the pages of the record relied on). Elmore has forfeited the issue that her motion for summary\n\njudgment was incorrectly denied.\n\n¶ 28 B. DS2 List and Ethnic Breakdown\n\n¶ 29 Elmore makes more specific arguments about the status of two other documents: the DS2\n\nlist and the ethnic breakdown of hires at Jefferson and York schools. We consider each in turn.\n\nAccording to Elmore, the DS2 list is part of an online application for reassignment within CPS and\n\ncontains the names of educators along with one of four designations: highly recommended,\n\nrecommended, recommended with reservations, or not recommended. Elmore alleges that the\n\nBoard refused to produce the DS2 list where “not recommended” was placed next to her name.\n\n¶ 30 The DS2 list was addressed in the parties’ cross-motions for summary judgment. When\n\nparties file cross-motions for summary judgment, they mutually agree that there are no genuine\n\nissues of material fact and the case may be resolved as a matter of law. Wells Fargo Bank, N.A. v.\n\nCoghlan, 2021 IL App (3d) 190701, ¶ 22. However, to the extent that Elmore contends that a\n\nmaterial issue of fact exists, we review that as well. Id. To prevail on a motion for summary\n\njudgment, a public body must show that its search was adequate and any withheld documents fall\n\nwithin an exemption to FOIA. BlueStar Energy Services, Inc., 374 Ill. App. 3d at 996. If the public\n\nbody’s submissions are adequate on their face, the circuit court may forgo discovery and award\n\nsummary judgment on the basis of affidavits. Id. at 997.\n\n¶ 31 The Board’s FOIA officer averred in his affidavit that documents related to the DS2 list\n\nwere tendered to Elmore on a CD in 2015. The Board’s director of HRIT in information and\n\ntechnology services stated in an affidavit that there was no record that Elmore completed the\n\napplication questions that would have triggered one of the four designations. The Board also\n\nsubmitted the documents it produced to Elmore. The Board’s affidavits and submissions met its\n\n\n\n -10-\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\nburden to show that it produced the DS2 list documents that were in its possession, and that it did\n\nnot have a document showing Elmore’s name with a “not recommended” designation. Elmore did\n\nnot prove otherwise. “Mere speculation, conjecture, or guess is insufficient to withstand summary\n\njudgment.” Source v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). Elmore’s belief\n\nthat a certain document must exist does not make it so. CPS sufficiently proved that it met its\n\nobligations under FOIA as to the DS2 list.\n\n¶ 32 As to the second specific document at issue, Elmore sought the “[e]thnic (racial)\n\nbreakdown” of all hires from May 30, 2011, to October 15, 2013, at Jefferson and York schools.\n\nCPS denied the request, stating it was “unable to provide individual employee ethnicity and\n\nbecause the group is so small (6) providing a summary of the ethnicity would lead to identification\n\nof the employee.” Elmore asserts that the circuit court did not determine whether the Board was\n\njustified in refusing her request. Elmore also states that the circuit court simply relied on the\n\nBoard’s “non-convincing, conclusionary rhetoric,” and ethnicities do not identify any individual.\n\n¶ 33 The Board’s FOIA officer stated in his affidavit that CPS does not release information\n\nbased on race because it may likely lead to identifying individuals and the release may be an\n\ninvasion of privacy. The FOIA officer further stated a search identified six people and releasing\n\nthe requested information would personally identify those employees, which in turn would violate\n\nFOIA. The Board’s justification for not releasing the information and the circuit court’s agreement\n\nwith the Board were on solid ground. One of the exemptions in the FOIA statute applies to:\n\n “Personal information contained within public records, the disclosure of which\n\n would constitute a clearly unwarranted invasion of personal privacy, unless the\n\n disclosure is consented to in writing by the individual subjects of the information.\n\n ‘Unwarranted invasion of personal privacy’ means the disclosure of information\n\n\n\n -11-\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\n that is highly personal or objectionable to a reasonable person and in which the\n\n subject’s right to privacy outweighs any legitimate public interest in obtaining the\n\n information.” 5 ILCS 140/7(c) (West 2012).\n\nThis court has held that public employees have a reasonable expectation that their racial\n\nidentification will remain private. CBS, Inc. v. Partee, 198 Ill. App. 3d 936, 945 (1990). Elmore\n\noffers no contrary argument that is supported by case law. Elmore suggests that CPS could have\n\nredacted the names and just provided the employees’ ethnicities. It is unclear how that is different\n\nfrom what she requested. Regardless, with such a small number of people involved, releasing only\n\nethnicities could still lead to identifying individual employees. Elmore’s request was properly\n\ndenied under a FOIA exemption.\n\n¶ 34 C. Due Process\n\n¶ 35 Elmore next contends that she was denied due process and substantive due process, but\n\ndoes not explain what actions in the circuit court violated her due process rights. As stated above,\n\nan issue not clearly defined and sufficiently presented does not satisfy the requirements of Rule\n\n341(h)(7) (eff. Oct. 1, 2020) and is forfeited. Atlas, 2019 IL App (1st) 180939, ¶ 33.\n\n¶ 36 D. Section 2(h) of FOIA\n\n¶ 37 Elmore asserts that the circuit court granted summary judgment on the basis of section 2(h)\n\nof FOIA, which concerns voluminous requests and was not in effect when she filed her complaint\n\nin 2014. According to Elmore, the circuit court allowed the Board to invoke section 2(h) as an\n\naffirmative defense.\n\n¶ 38 Section 2(h) defines “voluminous request” and was added to the FOIA statute in December\n\n2014. Pub. Act. 98-1129 (eff. Dec. 4, 2014) (amending 5 ILCS 140/2). Contrary to Elmore’s\n\ncontention, the circuit court’s orders on the summary judgment motions do not mention section\n\n\n\n -12-\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\n2(h). That section is not a reason for disturbing the court’s judgment. Also, we review the circuit\n\ncourt’s ruling and not the reasons for the ruling. Barney v. Unity Paving, Inc., 266 Ill. App. 3d 13,\n\n18 (1994). We find no error in the circuit court’s conclusion that CPS performed an adequate\n\nsearch and disclosed all that was required.\n\n¶ 39 E. Perjury\n\n¶ 40 Elmore next contends that the circuit court should have found that Clair-McClellan\n\ncommitted perjury, an issue that Elmore raised in her motion to order perjury. Elmore focuses her\n\nargument on Exhibit A, which initially was not attached to Clair-McClellan’s affidavit and was\n\nlater deemed to be the IDOC/Healy SOL document that Elmore had already received. Elmore\n\ndisputes that Exhibit A is the IDOC/Healy SOL document. Elmore further argues that Clair-\n\nMcClellan committed perjury because the IDOC/Healy SOL document could not have been made\n\nfor teachers affected by a reallocation of funds where the layoffs for which the document was\n\ncreated did not occur until three months later.\n\n¶ 41 We construe Elmore’s position to be that the circuit court should have entered an order of\n\ncontempt against Clair-McClellan. See People v. Randall, 89 Ill. App. 3d 406, 412 (1980) (perjury\n\nand false swearing constitute indirect contempt). Though “the mere filing of court documents\n\ncontaining known falsities may be calculated to impede or obstruct the court in its administration\n\nof justice [citation], the evidence must still show that the party charged with contempt willfully\n\nmade the false representation.” Windy City Limousine Co. v. Milazzo, 2018 IL App (1st) 162827,\n\n¶ 57.\n\n¶ 42 The circuit court properly concluded that Clair-McClellan did not make a false\n\nrepresentation. The court’s determination was based on evaluating credibility and weighing\n\nevidence, and in that scenario, we may not substitute our judgment for that of the trier of fact unless\n\n\n\n -13-\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\nthe evidence is so unreasonable, improbable, or unsatisfactory as to clearly require a different\n\nconclusion. Sunset Travel, Inc. v. Lovecchio, 113 Ill. App. 3d 669, 678 (1983). The evidence\n\nsupports a finding that Exhibit A was the IDOC/Healy SOL document and was created for the\n\npurpose stated in Clair-McClellan’s affidavit. Clair-McClellan averred that she created Exhibit A\n\nas part of an analysis of teachers affected by a reallocation of funds affecting Healy South. The\n\npurpose of the document was to identify a teacher’s area of experience and seniority to assist in\n\nredeployment efforts within the district. Meanwhile, the IDOC/Healy SOL document is dated\n\nApril 27, 2011, and lists Elmore and other teachers, along with their job titles, the programs in\n\nwhich they taught, their “Sr. Date[s],” and their certifications. As the circuit court found, the\n\nIDOC/Healy SOL document matched the description of Exhibit A in Clair-McClellan’s affidavit.\n\nFurther, it is reasonable to conclude that the document was created to plan for the layoffs that\n\noccurred three months later. There was no showing that the IDOC/Healy SOL document was\n\nperjured or that Clair-McClellan made false statements in her affidavit. The circuit court properly\n\ndenied Elmore’s motion to order perjury.\n\n¶ 43 Also, the record contradicts Elmore’s assertion that the circuit court did not rule on her\n\nmotion to order perjury. The circuit court explicitly denied the motion after the hearing on July 20,\n\n2021, providing reasons for doing so, and the court’s written order also stated that “[p]laintiff’s\n\n[m]otion is denied.” The circuit court fully addressed Elmore’s motion to order perjury.\n\n¶ 44 F. Allegedly Late Exhibits\n\n¶ 45 Elmore next states that the Board should not have been allowed to file exhibits where they\n\nwere not attached to its summary judgment motion that the Board filed on February 22, 2021. The\n\nBoard attached exhibits to each of its summary judgment motions, so Elmore’s argument is\n\nconfusing. If Elmore is referring to Exhibit A, that matter was fully addressed in the circuit court.\n\n\n\n -14-\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\nDuring the proceedings on the parties’ cross-motions for summary judgment, the Board initially\n\ndid not attach Exhibit A—the IDOC/Healy SOL document—to Clair-McClellan’s affidavit, but\n\nlater produced it as required by a court order. The record indicates that Elmore already had this\n\ndocument. The court found that the Board did not willfully withhold it, a finding that we see no\n\nreason to disturb. Again, the record shows that the Board attached other exhibits to its motions for\n\nsummary judgment, including the one filed on February 22, 2021. Elmore misconstrues the record,\n\nand there is no error here.\n\n¶ 46 G. Accusation Against the Clerk’s Office\n\n¶ 47 Elmore asserts that “someone in the Clerk of the Court *** did something very illegal.”\n\nThis argument seems to be the same one she advanced in the circuit court that the clerk’s office\n\nillegally back-dated the exhibits that the Board filed in support of its motion for summary judgment\n\nas to Exhibit A. Elmore’s accusation is purely speculative and unsupported by any evidence in the\n\nrecord. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2010) (argument must contain appellant’s\n\ncontentions and the reasons for those contentions, as well as cite to authority and the pages of the\n\nrecord relied on). Some exhibits to the Board’s summary judgment motion have two date-stamps,\n\nbut that does not mean anything illegal occurred, The exhibits are the same as those appended in\n\nprevious filings, which explains why two date-stamps appear. There is no error.\n\n¶ 48 H. Attorney Appearances\n\n¶ 49 Elmore next contends that the Board engaged in trickery by having seven attorneys come\n\non and off the case. Elmore also states that four of the Board’s attorneys did not file appearances,\n\nand one attorney left the case without withdrawing by motion. Elmore argues that the Board\n\nviolated Illinois Supreme Court Rule 13 (eff. July 1, 2017), and she was prejudiced as a result.\n\n\n\n\n -15-\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\n¶ 50 Rule 13 requires an attorney to file a written appearance or other pleading before addressing\n\nthe court unless the attorney is presenting a motion for leave to appear by intervention or otherwise,\n\nand to obtain leave of court before withdrawing an appearance. Ill. S. Ct. R. 13(c)(1), (2) (eff. July\n\n1, 2017). Here, the Board’s attorneys were not required to file separate appearances, or obtain\n\nleave of court to withdraw. “[T]he employment of a law firm is the employment of all members\n\nof that firm unless there is a special understanding otherwise.” Knight v. Guzman, 291 Ill. App. 3d\n\n378, 382 (1997). Applying the rule of Knight to a governmental body with a large in-house legal\n\nstaff that functions like a law firm, and noting that it is common practice for multiple attorneys\n\nfrom a governmental body to appear in court for that body without filing individual appearances,\n\nwe reject Elmore’s contention that the failure of the Board’s attorneys to file individual\n\nappearances constituted reversible error.\n\n¶ 51 I. Supplemental Appendix\n\n¶ 52 Lastly, we address the supplemental appendix that the Board filed with its brief that\n\nincludes documents from Elmore’s federal cases. The Board asserts that we may take judicial\n\nnotice of these documents. The Board further argues that Elmore’s pattern of making accusations\n\nagainst judges that rule on her cases is relevant to this appeal. Elmore strenuously objects to the\n\nfederal documents being included in the record on appeal.\n\n¶ 53 Elmore’s accusations warrant comment. Elmore’s filings in the circuit court are peppered\n\nwith various accusations against the judges who presided over her case. On appeal, Elmore’s brief\n\naccuses a judge of “deliberately [prejudicing]” her and of making “no attempt based on the rule of\n\nlaw” to enforce FOIA and legal precedent. To the extent that Elmore claims that any judge she has\n\ninteracted with was biased against her, that claim is rejected. Judges are presumed to be impartial,\n\nand Elmore has not presented any evidence to overcome that presumption. See Lesher v. Trent,\n\n\n\n -16-\n\fNo. 1-21-1016 & 1-21-1039 (cons.)\n\n\n407 Ill. App. 3d 1170, 1176 (party claiming bias must show either a personal bias from a source\n\nother than the litigation or comments made during the proceedings that reveal such a high degree\n\nof favoritism or antagonism as to make a fair judgment impossible). The circuit court judges who\n\nhandled Elmore’s lawsuit did so fairly and considered her arguments. Simply that Elmore has lost\n\nis not evidence of bias. See Eychaner v. Gross, 202 Ill. 2d 228, 280 (2002) (a judge’s rulings alone\n\nare almost never a valid basis for a claim of judicial bias). Elmore has not shown that any judge in\n\nthe circuit court was biased against her or participated in any misconduct.\n\n¶ 54 As for the supplemental appendix, we may take judicial notice of the record in another case\n\ninvolving the same party or of public documents contained in the record of any other judicial\n\nproceeding if doing so would help us decide the present case. In re Marcus S., 2022 IL App (3d)\n\n160710, ¶ 47 n.2. Here, however, the supplemental appendix is not necessary, as we can fully\n\naddress this appeal without it.\n\n¶ 55 III. CONCLUSION\n\n¶ 56 For the foregoing reasons, the judgment of the circuit court is affirmed.\n\n¶ 57 Affirmed.\n\n\n\n\n -17-\n\f"} {"dedup_key":"2022 IL App (1st) 211194-U","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (1st) 211194-U","case_name":"Kraft v. Chicago Police Department","court_level":"Appellate","appellate_district":"1st","year":2022,"county":"Cook","appellate_docket":"1-21-1194","circuit_docket":"20 CH 5792","published":0,"authoring_justice":"Rochford","statute":["FOIA"],"exemptions_cited":["3(g)"],"public_body":"Chicago Police Department","requesting_party":"John Kraft, Edgar County Watchdogs, Shreyas Gandlur, and Andy Thayer","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court affirmed the circuit court's grant of summary judgment in favor of the Chicago Police Department. The court held that the department sufficiently established that the plaintiffs' FOIA requests were unduly burdensome under section 3(g) of the Act.","best_text_source":"Court Opinions - FOIA/Kraft v. The Chicago Police Department, 2022 IL App (1st) 211194-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:40.170983","site_category":"Fees & Burdensome Requests","date_decided":"2022-06-09","site_url":"/cases/2022%20IL%20App%20(1st)%20211194-U/","text_url":"/case-text/2022%20IL%20App%20(1st)%20211194-U.txt","full_text":" 2022 IL App (1st) 211194-U\n Order filed: June 9, 2022\n\n FIRST DISTRICT\n FOURTH DIVISION\n\n No. 1-21-1194\n\nNOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the\nlimited circumstances allowed under Rule 23(e)(1).\n______________________________________________________________________________\n\n IN THE\n APPELLATE COURT OF ILLINOIS\n FIRST JUDICIAL DISTRICT\n______________________________________________________________________________\n\n JOHN KRAFT, EDGAR COUNTY WATCHDOGS, ) Appeal from the\n SHREYAS GANDLUR and ANDY THAYER, ) Circuit Court of\n ) Cook County.\n Plaintiffs-Appellants, )\n ) No. 20 CH 5792\n v. )\n ) Honorable\n THE CHICAGO POLICE DEPARTMENT, ) Raymond W. Mitchell,\n ) Judge, presiding.\n Defendant-Appellee. )\n______________________________________________________________________________\n\n JUSTICE ROCHFORD delivered the judgment of the court.\n Presiding Justice Reyes and Justice Lampkin concurred in the judgment.\n\n ORDER\n\n¶1 Held: Circuit court properly granted summary judgment in favor of police department in\n this FOIA proceeding, where police department established that responding to\n plaintiffs’ record requests would be unduly burdensome.\n\n¶2 Plaintiffs-appellants, John Kraft, Edgar County Watchdogs (ECW), Shreyas Gandlur, and\n\nAndy Thayer, brought two lawsuits against defendant-appellant, the Chicago Police Department\n\n(CPD), seeking the disclosure of certain records related to a 2020 officer-involved shooting,\n\npursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2020)).\n\n¶3 Plaintiffs’ lawsuits were consolidated, and the parties filed cross-motions for summary\n\njudgment. The circuit court denied plaintiffs’ motion and granted CPD’s motion, ruling that the\n\fNo. 1-21-1194\n\nrecords sought by plaintiffs were exempt from disclosure under FOIA. Plaintiffs have appealed,\n\nand for the following reasons we affirm.\n\n¶4 At approximately 2:30 p.m. on August 9, 2020, CPD officers were involved in the non-\n\nfatal, officer-involved shooting of Latrell Allen. Shortly thereafter, CPD issued public statements\n\nabout the shooting through its superintendent. In addition, two press releases regarding the\n\nshooting were issued the following day by the Civilian Office of Police Accountability (COPA).\n\nTherein, COPA indicated that preliminary information indicated that the officers opened fire after\n\nAllen discharged a firearm at the officers. Allen was shot and was transported to a hospital in stable\n\ncondition. Noting that the officers involved were not equipped with body-worn cameras and that\n\nits investigation was ongoing, each press release asked anyone with further information or relevant\n\nvideo evidence of the shooting to contact COPA.\n\n¶5 Less than 24 hours after the shooting, Gandlur submitted a FOIA request to CPD seeking\n\n“all video or audio footage related to the police-involved shooting in Englewood on August 9,\n\n2020[,] around 2:30 PM, including, but not limited to, body-worn camera footage and audio,\n\ndashcam footage and audio, footage from [Police Observation Devices], police radio traffic, 911\n\ncalls, or any other video or audio footage.” CPD acknowledged receipt of the request the next day,\n\nand in a letter issued August 11, 2020, CPD extended the time to respond by five business days\n\nunder section 3(e) of FOIA. 5 ILCS 140/3(e) (West 2020).\n\n¶6 In that letter, CPD acknowledged its obligation under FOIA to respond to the request within\n\nno more than 10 business days. However, CPD went on to explain that due to the COVID-19\n\npandemic, some of CPD’s FOIA officers were unable to report to work or were working from\n\nhome, and some had been deployed to the field for public safety. As such, CPD informed Gandlur\n\nas follows:\n\n -2-\n\fNo. 1-21-1194\n\n “Please keep in mind that FOIA allows CPD and the requester to come to a\n\n mutually agreeable response period to comply with a FOIA request. Members of the\n\n public and media are asked to keep these considerations in mind and are strongly\n\n encouraged to work with public bodies to agree on reasonable and appropriate response\n\n times in light of the public health concerns we all face. Given that the length of the\n\n pandemic remains unknown and that staffing levels have been reduced, during this\n\n statewide emergency declaration, CPD may treat a FOIA request as unduly burdensome,\n\n in the event that it is not feasible for CPD to comply with or deny a request for public\n\n records within 5 business days after its receipt of the request or the time for response was\n\n properly extended under 5 ILCS 140/3(e) because it would unduly burden CPD's\n\n operations during the COVID-19 pandemic.”\n\n¶7 CPD thereafter denied Gandlur’s request in a letter issued on August 24, 2020. Therein,\n\nCPD explained that no body-worn camera footage of the shooting itself existed because the\n\nofficers involved were part of a new unit not yet equipped with such cameras. Other responsive\n\nvideo footage did exist, from in-car and body-worn cameras capturing events after the shooting.\n\nHowever, CPD asserted that these responsive records were exempt under sections 7(1)(d)(i), (ii)\n\nand (vii) of FOIA (5 ILCS 140/7(1)(d)(i), (ii), (vii) (West 2020)), because CPD and COPA had\n\npending investigations into the shooting, and any release of the records would therefore interfere\n\nwith those pending law enforcement and administrative enforcement proceedings and obstruct an\n\nongoing criminal investigation.\n\n¶8 CPD also denied Gandlur’s request under section 3(g) of FOIA (5 ILCS 140/3(g) (West\n\n2020), because processing it would be unduly burdensome in light of the short response time\n\nrequired by FOIA and the volume of material involved. A search for responsive video returned 71\n\n -3-\n\fNo. 1-21-1194\n\nhours of footage which, based upon prior experience, would each require 3 hours of review totaling\n\nat least 213 hours. For these reasons, CPD concluded:\n\n “These facts, paired with the short response time allowed by FOIA, make the task\n\n of identifying, collecting, and reviewing potentially responsive records in a timely\n\n manner unduly burdensome upon CPD. As a result, CPD has determined that compliance\n\n with your request is unduly burdensome and that CPD’s burden to process your request\n\n outweighs the public’s interest.\n\n At this time, your request is unduly burdensome as currently written.\n\n However, to the extent that you narrow your FOIA request, it was determined that\n\n the release of any body-worn camera video and in-car camera video records at this\n\n time must be denied pursuant to 7(1)(d)(i), (ii), and (vii) as explained above.”\n\n¶9 Two days after the shooting, on August 11, 2020, Thayer submitted his own FOIA request\n\nseeking “all motion picture / video footage of the police shooting of Latrell Allen on Sunday,\n\nAugust 9th, including the events leading up to the shooting and police / community interactions in\n\nthe vicinity of the shooting for three hours afterwards,” including “that from police ‘body cams,’\n\nand all other footage by private and public individuals and institutions obtained by [CPD].” Thayer\n\nalso sought “emails and memos related to this shooting, from August 9th thru []August 11th, with\n\nthe suggested search terms ‘Latrell Allen,’ ‘Allen,’ ‘Englewood,’ and ‘shooting.’ ” CPD\n\nacknowledged receipt of the request the same day and, in a letter issued August 11, 2020, CPD\n\nextended the time to respond by five business days under section 3(e) of FOIA. That letter\n\ncontained the same information regarding COVID-19 and CPD’s ability to timely respond to FOIA\n\nrequests discussed above.\n\n¶ 10 CPD denied Thayer’s request on August 25, 2020, explaining in its letter that no body-\n\n -4-\n\fNo. 1-21-1194\n\nworn camera footage of the shooting existed but responsive videos from after the shooting did\n\nexist. However, CPD contended that these responsive records were exempt under FOIA for the\n\nsame reasons it had denied Gandlur’s request. CPD also determined that compliance with Thayer’s\n\nrequest for emails as written would also be unduly burdensome because a search using his\n\nproposed search terms and time-period returned approximately 30,000 potentially responsive\n\nemails, each of which based upon prior experience could be comprised of a single page to well\n\nover 1,000 pages including attachments. CPD estimated based on prior experience that a review\n\nof those emails would take 1,000 hours at a minimum. The letter concluded as follows:\n\n “At this time, your request is unduly burdensome as currently written. Pursuant to\n\n Section 3(g) of FOIA, we would like to extend to you an opportunity to modify your request\n\n to make it more manageable. CPD encourages you to review your request to ascertain the\n\n specific details to your query. Unless and until a new FOIA request is submitted that\n\n specifies what records you are seeking, CPD will be unable to provide further records.\n\n Once this is determined, a new FOIA request can be submitted to CPD, specifying the\n\n records you would like CPD to provide. However, as explained above, it was determined\n\n that the release of any records specifically relating to the referenced officer-involved\n\n shooting must be denied at this time pursuant to 7(1)(d)(i), (ii), and (vii).\n\n¶ 11 Kraft, on behalf of ECW, also submitted a FOIA request on August 11, 2020, seeking “all\n\naudio, video, reports, emails, texts, and other records regarding or referencing the police involved\n\nshooting, resulting in injury on August 9, 2020, in or near Englewood” involving Latrell Allen.\n\nCPD acknowledged receipt of the request the next day and, in a letter issued August 12, 2020,\n\nCPD extended the time to respond by five business days under section 3(e) of FOIA. That letter\n\nonce again contained the same information regarding COVID-19 and CPD’s ability to timely\n\n -5-\n\fNo. 1-21-1194\n\nrespond to FOIA requests discussed above.\n\n¶ 12 On August 26, 2020, CPD provided Kraft and ECW with redacted copies of the arrest\n\nreport and original case incident report but otherwise denied their request. However, in a letter\n\nissued that day CPD again noted the lack of body-camera footage of the shooting and further\n\nasserted that responsive records were otherwise exempt under sections 7(1)(d)(i), (ii), and (vii) of\n\nFOIA. CPD also contended that compliance with the request for other video records would be\n\nunduly burdensome under section 3(g), and Kraft’s request for “all emails” regarding the shooting\n\nwas also unduly burdensome because he did not provide any email addresses, employee names,\n\nspecific search terms, or a time frame for the search. CPD extended an opportunity to narrow the\n\nrequest in the exact same manner as it had with respect to Thayer’s request, but once again\n\nmaintained that a narrowed request for records relating specifically to the officer-involved\n\nshooting must also be denied at that time under sections 7(1)(d)(i), (ii), and (vii) of FOIA.\n\n¶ 13 On September 9, 2020, Gandlur and Thayer filed a joint complaint in the circuit court, each\n\nraising counts asserting that CPD improperly withheld the requested records, failed to conduct an\n\nadequate search for responsive records, and willfully and intentionally violated FOIA with respect\n\nto their respective FOIA requests. Kraft and ECW filed a three-count complaint the same day\n\ncontaining identical allegations with respect to the FOIA request filed by Kraft. The two\n\ncomplaints were later consolidated without objection.\n\n¶ 14 On January 21, 2021, plaintiffs filed a motion for partial summary judgment and for “CPD\n\nto produce an index of each redacted or withheld record at the same time as CPD’s response to\n\nthis motion,” pursuant to section 11(e) of FOIA. 5 ILCS 140/11(e) (West 2020) (“On motion of\n\nthe plaintiff, prior to or after in camera inspection, the court shall order the public body to provide\n\nan index of the records to which access has been denied.”). CPD responded with a cross-motion\n\n -6-\n\fNo. 1-21-1194\n\nfor summary judgment. In support of its motion, CPD submitted affidavits from FOIA Officer\n\nAndrew Marlan, who handled all three FOIA requests, Commander Kevin Bruno from the Bureau\n\nof Detectives’ Investigative Response Team, and Vaughn Ganiyu, an attorney in CPD’s Legal\n\nAffairs Division who corresponded with COPA about its pending investigation. Marlan attested\n\nthat he contacted Bruno (and several other CPD personnel) after receiving the FOIA requests to\n\ndetermine what responsive records existed and whether they could be produced. Those affidavits\n\nfurther generally contained information and assertions supporting the truthfulness and accuracy of\n\nthe justifications contained in CPD’s written responses to plaintiffs’ FOIA requests. Plaintiffs did\n\nnot submit any affidavits to the circuit court.\n\n¶ 15 On June 30, 2021, the circuit court entered a written order granting CPD’s motion for\n\nsummary judgment and denying plaintiffs’ motion for partial summary judgment. The circuit court\n\nheld that CPD established by clear and convincing evidence that the requested records would\n\ninterfere with an ongoing investigation, and thus were exempt, and emphasized that the incident\n\noccurred only one day before the first FOIA request was submitted. The court further determined\n\nthat providing initial information about the shooting in the press releases had no bearing on\n\nwhether release of records would influence witness testimony and it was “absurd to suggest that\n\nthe existence of a press release ipso facto defeats the claimed exemption.”\n\n¶ 16 The court also concluded that CPD conducted a sufficient search and did not willfully\n\nviolate FOIA. Because it determined the records were exempt under section 7(1)(d), the circuit\n\ncourt declined to rule on whether the requests were also properly denied as being unduly\n\nburdensome under section 3(g). However, the circuit court did grant plaintiffs partial relief by\n\nordering CPD to “produce an index of each redacted or withheld record pursuant to FOIA Section\n\n11(e).” Plaintiffs timely appealed.\n\n -7-\n\fNo. 1-21-1194\n\n¶ 17 Summary judgment may be entered where “the pleadings, depositions, and admissions on\n\nfile, together with the affidavits, if any, show that there is no genuine issue as to any material fact\n\nand that the moving party is entitled to judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West\n\n2020). “Although the filing of cross-motions for summary judgment does not necessarily establish\n\nthe lack of an issue of material fact or obligate a court to render summary judgment, it does indicate\n\nthat the parties agree that the case involves a question of law and that they invite the court to decide\n\nthe issues based on the record.” Shared Imaging, LLC v. Hamer, 2017 IL App (1st) 152817, ¶ 13.\n\nWe conduct a de novo review of a ruling on a motion for summary judgment. Bank of New York\n\nMellon v. Wojcik, 2019 IL App (1st) 180845, ¶ 19. We may affirm a ruling on a motion for\n\nsummary judgment on any basis found in the record. Rosestone Investments, LLC v. Garner, 2013\n\nIL App (1st) 123422, ¶ 23.\n\n¶ 18 The parties’ contentions regarding the relevant provisions of FOIA present a question of\n\nstatutory interpretation, which we also review de novo. Millennium Park Joint Venture, LLC v.\n\nHoulihan, 241 Ill. 2d 281, 294 (2010). The rules applicable to this task are well-established and\n\nwere summarized in Hendricks v. Board of Trustees of the Police Pension Fund, 2015 IL App (3d)\n\n140858, ¶ 14:\n\n “The fundamental rule of statutory interpretation is to ascertain and give effect to the intent\n\n of the legislature. [Citation.] The most reliable indicator of that intent is the language of\n\n the statute itself. [Citation.] In determining the plain meaning of statutory language, a court\n\n will consider the statute in its entirety, the subject the statute addresses, and the apparent\n\n intent of the legislature in enacting the statute. [Citations.] If the statutory language is clear\n\n and unambiguous, it must be applied as written, without resorting to further aids of\n\n statutory interpretation. [Citation.] A court may not depart from the plain language of the\n\n -8-\n\fNo. 1-21-1194\n\n statute and read into it exceptions, limitations, or conditions that are not consistent with the\n\n express legislative intent.”\n\n¶ 19 Here, FOIA itself expressly declares the statute’s public policy and the legislature’s intent.\n\nSection 1 provides that “it is declared to be the public policy of the State of Illinois that all persons\n\nare entitled to full and complete information regarding the affairs of government and the official\n\nacts and policies of those who represent them as public officials and public employees consistent\n\nwith the terms of this Act.” 5 ILCS 140/1 (West 2020). Section 1 goes on to explain that “[s]uch\n\naccess is necessary to enable the people to fulfill their duties of discussing public issues fully and\n\nfreely, making informed political judgments and monitoring government to ensure that it is being\n\nconducted in the public interest.” Id. As such, section 1 provides that “[i]t is a fundamental\n\nobligation of government to operate openly and provide public records as expediently and\n\nefficiently as possible in compliance with this Act.” Id. Indeed, section 1.2 of FOIA provides that\n\n“[a]ll records in the custody or possession of a public body are presumed to be open to inspection\n\nor copying. Any public body that asserts that a record is exempt from disclosure has the burden of\n\nproving by clear and convincing evidence that it is exempt.” Id. § 1.2.\n\n¶ 20 Specific exemptions from this required disclosure are provided in section 7 of FOIA. Id.\n\n§ 7; see also id. § 3(a) (“Each public body shall make available to any person for inspection or\n\ncopying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.”).\n\nHowever,\n\n “[r]estraints on access to information, to the extent permitted by this Act, are limited\n\n exceptions to the principle that the people of this State have a right to full disclosure of\n\n information relating to the decisions, policies, procedures, rules, standards, and other\n\n\n\n -9-\n\fNo. 1-21-1194\n\n aspects of government activity that affect the conduct of government and the lives of any\n\n or all of the people.” Id. § 1.\n\nBased upon the legislature’s clear expression of public policy and intent, our supreme court has\n\nheld that FOIA is to be generally accorded liberal construction, while its exemptions are to be\n\nconstrued narrowly. Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390,\n\n416 (2006). Therefore, “ ‘when a public body receives a proper request for information, it must\n\ncomply with that request unless one of the narrow statutory exemptions set forth in *** the Act\n\napplies.’ ” Id. at 417 (quoting Illinois Education Ass’n v. Illinois State Board of Education, 204\n\nIll. 2d 456, 463 (2003)).\n\n¶ 21 As relevant here, FOIA exempts from disclosure:\n\n “Records in the possession of any public body created in the course of\n\n administrative enforcement proceedings, and any law enforcement or correctional agency\n\n for law enforcement purposes, but only to the extent that disclosure would:\n\n (i) interfere with pending or actually and reasonably contemplated law\n\n enforcement proceedings conducted by any law enforcement or correctional agency that\n\n is the recipient of the request;\n\n (ii) interfere with active administrative enforcement proceedings conducted by the\n\n public body that is the recipient of the request; [or]\n\n ***\n\n (vii) obstruct an ongoing criminal investigation by the agency that is the recipient\n\n of the request.” 5 ILCS 140/7(1)(d)(i), (ii), (vii) (West 2020).\n\nFOIA also exempts records from disclosure under the following conditions:\n\n “Requests calling for all records falling within a category shall be complied with\n\n - 10 -\n\fNo. 1-21-1194\n\n unless compliance with the request would be unduly burdensome for the complying public\n\n body and there is no way to narrow the request and the burden on the public body outweighs\n\n the public interest in the information. Before invoking this exemption, the public body shall\n\n extend to the person making the request an opportunity to confer with it in an attempt to\n\n reduce the request to manageable proportions. If any public body responds to a categorical\n\n request by stating that compliance would unduly burden its operation and the conditions\n\n described above are met, it shall do so in writing, specifying the reasons why it would be\n\n unduly burdensome and the extent to which compliance will so burden the operations of\n\n the public body. Such a response shall be treated as a denial of the request for information.”\n\n 5 ILCS 140/3(g) (West 2020).\n\n¶ 22 An individual who has been denied access to records may file an action in the circuit court\n\nfor injunctive or declaratory relief. Chicago Tribune Co. v. Department of Financial &\n\nProfessional Regulation, 2014 IL App (4th) 130427, ¶ 23 (citing 5 ILCS 140/11(a) (West 2010)).\n\nThe public body then has the burden to prove, by clear and convincing evidence, that the requested\n\nrecords fall within an exemption. 5 ILCS 140/11(f) (West 2020). This burden is only met when\n\nthe public agency “ ‘provide[s] a detailed justification for its claim of exemption, addressing the\n\nrequested documents specifically and in a manner allowing for adequate adversary testing.’ ”\n\n(Emphasis omitted.) Illinois Education Ass’n, 204 Ill. 2d at 464 (quoting Baudin v. City of Crystal\n\nLake, 192 Ill. App. 3d 530, 537 (1989)). Section 11(f) of FOIA (5 ILCS 140/11(f) (West 2020))\n\nrequires the circuit court to review the request for documents de novo and conduct an in camera\n\nexamination of the requested records as it finds appropriate to determine if the records, or any part\n\nthereof, may be withheld under any provision of the Act. Southern Illinoisan, 218 Ill. 2d at 418.\n\nHowever, an in camera inspection is not necessary “where the public body meets its burden of\n\n - 11 -\n\fNo. 1-21-1194\n\nshowing that the statutory exemption applies by means of affidavits.” Illinois Education Ass’n,\n\n204 Ill. 2d at 469 (citing Williams v. Klincar, 237 Ill. App. 3d 569, 572-73 (1992)). “[A]ffidavits\n\nwill not suffice if the public body’s claims are conclusory, merely recite statutory standards, or are\n\ntoo vague or sweeping.” Id.\n\n¶ 23 Before continuing further, we make three preliminary points. First, plaintiffs’ complaints\n\nincluded counts asserting that CPD improperly withheld the requested records, failed to conduct\n\nan adequate search for responsive records, and willfully and intentionally violated FOIA with\n\nrespect to their respective FOIA requests. In addition, plaintiffs’ motion for partial summary\n\njudgment specifically asked the circuit court to order CPD to produce an index of each redacted or\n\nwithheld record at the same time as CPD filed its response to that motion, pursuant to section 11(e)\n\nof FOIA. However, the circuit court only ordered CPD to do so after the cross-motions for\n\nsummary judgment were fully briefed, in the same final order disposing of this matter and granting\n\nsummary judgment in favor of CPD.\n\n¶ 24 On appeal, however, plaintiffs only challenge the circuit court’s grant of summary\n\njudgment in favor of CPD on plaintiffs’ claim that CPD improperly withheld the requested records.\n\nWe will therefore limit our analysis to that issue, as the other two claims have been forfeited. Ill.\n\nS. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are forfeited and shall not be raised in\n\nthe reply brief, in oral argument, or on petition for rehearing.”).\n\n¶ 25 Second, the shooting of Allen took place on August 9, 2020. Each of the three FOIA\n\nrequests at issue here were filed within two days thereafter, with the first request being filed less\n\nthan 24 hours after the shooting. Pursuant to FOIA, CPD had no more than 10 business days to\n\nrespond to each of these requests (5 ILCS 140/3(d), (f) (West 2020)), and it is undisputed that CPD\n\n\n\n - 12 -\n\fNo. 1-21-1194\n\ndid in fact timely respond to each of the three FOIA requests by August 26, 2020. 1 As such, CPD\n\nwas required to and did in fact respond to each of plaintiffs’ FOIA requests within 17 days of the\n\nshooting. This compressed timeline and the fact that these requests were made at the very\n\nbeginning of the investigations into the shootings will guide our discussion, as “the propriety of a\n\nresponse must be judged at the time the decision denying the FOIA request was made.” (Emphasis\n\nin original.) Green v. Chicago Police Dep't, 2021 IL App (1st) 200574, ¶ 23, appeal allowed, No.\n\n127229 (Sept. 29, 2021).\n\n¶ 26 Third, the circuit court resolved this matter based on the section 7(1)(d) exemptions\n\nclaimed by CPD and therefore declined to rule on the exemption CPD claimed under section 3(g)\n\nof FOIA. We find that the State’s exemption claim under section 3(g) should have been evaluated\n\nfirst under the circumstances here, however, where CPD never claimed to have reviewed each of\n\nthe records responsive to plaintiffs’ requests before asserting exemptions over all the potentially\n\nresponsive videos and emails under both sections 7(1)(d) and 3(g). This court has previously\n\nconcluded that “section 7(1)(d) does not itself permit blanket exemptions,” and that in situations\n\nsuch as those presented here, “defendants must establish an exemption under section 3(g) or be\n\nprepared to make the extensive redactions required by section 7(1)(d).” Kelly v. Vill. of Kenilworth,\n\n2019 IL App (1st) 170780, ¶¶ 47-49.\n\n¶ 27 More specifically, in Kelly, 2019 IL App (1st) 170780, ¶ 1, this court addressed a FOIA\n\nrequest for information regarding an unsolved murder. Those requests were denied under section\n\n\n\n 1\n As will be discussed more fully below, the only exception is contained in section 3(e) of FOIA,\nwhich provides: “The person making a request and the public body may agree in writing to extend the time\nfor compliance for a period to be determined by the parties. If the requester and the public body agree to\nextend the period for compliance, a failure by the public body to comply with any previous deadlines shall\nnot be treated as a denial of the request for the records.” 5 ILCS 140/3(e) (West 2020).\n\n - 13 -\n\fNo. 1-21-1194\n\n7(1)(d) of FOIA based on a claim that investigations into the murder were ongoing, and the\n\nplaintiff then filed a FOIA lawsuit in the circuit court. Id. Notably, one of the defendant police\n\ndepartments contended in the circuit court that “the entire file should be withheld. Going through\n\neach page of the investigative file ‘could potentially require hundreds of hours to review, analyze\n\nand redact information.’ ” Id. ¶ 9. However, none of the defendants in that case ever raised a claim\n\nthat the undue burden of compliance rendered the documents exempt from disclosure under section\n\n3(g) of FOIA. Id. The circuit court concluded that the requests were properly denied under section\n\n7(1)(d), after reviewing the defendant’s affidavits and a representative portion of the more than\n\n20,000 pages of responsive records in camera. Id. ¶¶ 7, 16.\n\n¶ 28 On appeal, this court affirmed in part and reversed in part, after concluding that the\n\ndefendants “failed to demonstrate that a blanket exception was warranted.” Id. ¶ 36. We noted that\n\nthe defendants had not “claimed to have reviewed defendants' entire investigative files. Instead,\n\ndefendants and their affiants [had] remarked on the burden of examining and redacting every\n\npage.” Id. ¶ 39. We found this improper, reasoning as follows:\n\n “Defendants here did not directly assert an exemption under section 3(g) or provide\n\n Kelly the opportunity to reduce his requests. Instead, they tried to obtain the benefits of\n\n section 3(g) without satisfying its burdens. Without properly raising a section 3(g)\n\n exemption in addition to the section 7(1)(d) exemptions, defendants' affidavits and\n\n documents submitted in camera did not establish why even the documents they did not sort\n\n through are exempt. Moreover, they did [not] demonstrate why this is the rare case in which\n\n nothing is left after redacting all material that is exempt under section 7(1)(d). Their\n\n affidavits were too sweeping for a section 7(1)(d) exemption standing alone. ***\n\n Defendants' approach failed to comply with the letter and spirit of Illinois's FOIA in this\n\n - 14 -\n\fNo. 1-21-1194\n\n instance.” Id. ¶ 41.\n\nThis court therefore ultimately concluded:\n\n “The items tendered to the court clearly demonstrated that an investigation into\n\n [the] murder is ongoing within the meaning of section 7(1)(d). *** Yet, section 7(1)(d)\n\n does not alone provide for the categorical assertion of the exemptions therein.\n\n Consequently, defendants have not met their burden of demonstrating that releasing any of\n\n the withheld materials would have interfered with enforcement proceedings or obstructed\n\n an investigation so as to render the entirety of their files exempt. We consequently reverse\n\n the circuit court's order granting summary judgment in their favor and remand for further\n\n proceedings consistent with this opinion. On remand, defendants will have the opportunity\n\n to raise a section 3(g) exemption upon complying with the procedures required by that\n\n statute.” Id. ¶ 54.\n\n¶ 29 Obviously, the situation here is not precisely analogous to the circumstances presented in\n\nKelly, as here CPD did explicitly claim an exemption under section 3(g). Just as in Kelly, however,\n\nhere CPD never claimed to have reviewed each of the records responsive to plaintiffs’ requests\n\nbefore asserting exemptions over all potentially responsive videos and emails under both sections\n\n7(1)(d) and 3(g), and the circuit court here granted CPD a blanket exemption solely under section\n\n7(1)(d) with respect to videos and emails CPD had never actually individually reviewed. This\n\nresult runs counter to Kelly’s instruction that in such circumstances “section 7(1)(d) does not itself\n\npermit blanket exemptions” and therefore “defendants must establish an exemption under section\n\n3(g) or be prepared to make the extensive redactions required by section 7(1)(d).” Id. ¶¶ 47-49.\n\n¶ 30 Nevertheless, we reiterate that we may affirm a ruling on a motion for summary judgment\n\non any basis found in the record. Garner, 2013 IL App (1st) 123422, ¶ 23. For the following\n\n - 15 -\n\fNo. 1-21-1194\n\nreasons, we conclude that CPD properly established that the records at issue were exempt under\n\nsection 3(g), and it is on that basis that we therefore affirm the circuit court's grant of summary\n\njudgment in CPD’s favor.\n\n¶ 31 As a threshold matter, section 3(g) requires that before a public body invokes section 3(g)\n\nit must extend to the person making the request an opportunity to confer with it in an attempt to\n\nnarrow the request. Hites v. Waubonsee Cmty. Coll., 2018 IL App (2d) 170617, ¶ 55; 5 ILCS\n\n140/3(g) (West 2020). This court has recognized that a defendant may establish that it met the\n\nburdens required by section 3(g) of FOIA via both its pre-suit written communications with the\n\nrequester of information and any affidavits provided in response to a FOIA lawsuit. Shehadeh v.\n\nMadigan, 2013 IL App (4th) 120742, ¶¶ 32-33; Sargent Shriver Nat'l Ctr. on Poverty Law, Inc. v.\n\nBd. of Educ. of City of Chicago, 2018 IL App (1st) 171846, ¶¶ 28, 38.\n\n¶ 32 On appeal, plaintiffs contend that CPD did not comply with this requirement in “good-\n\nfaith,” as it did not extend a “meaningful opportunity to confer” where in the final response letters\n\nto their FOIA requests “CPD explicitly told Plaintiffs that even if they were to narrow their\n\nrequests, any records related to the shooting of Mr. Allen would not be produced” due to the section\n\n7(1)(d) exemptions claimed by CPD. We disagree.\n\n¶ 33 Here, in each of the three letters extending the time to respond to plaintiffs’ FOIA\n\nrequests—issued before CPD’s final response letters—CPD explicitly informed plaintiffs that it\n\nwas experiencing strain in timely responding to FOIA requests due to the COVID-19 pandemic\n\nand that FOIA allows CPD and the requester to come to a mutually agreeable response period to\n\ncomply with a FOIA request. Those letters also encouraged plaintiffs to work with CPD to agree\n\non reasonable and appropriate response times in light of these concerns and informed plaintiffs\n\nthat in the absence of such an agreement CPD may treat plaintiffs’ requests as being unduly\n\n - 16 -\n\fNo. 1-21-1194\n\nburdensome under section 3(g). Furthermore, in his affidavit Marlan specifically averred:\n\n“Although I offered to confer with Plaintiffs to narrow the scope of their requests, they failed to\n\ndo so.” Plaintiffs did not file any affidavits below, and for “purposes of the summary judgment\n\nmotion, facts contained in an affidavit are admitted as true if not contradicted by a counteraffidavit\n\nor other evidentiary material.” Vill. of Arlington Heights v. Anderson, 2011 IL App (1st) 110748,\n\n¶ 10.\n\n¶ 34 Furthermore, even in CPD’s final response letters CPD indicated that it was only claiming\n\nthat plaintiffs’ requests were exempt under section 7(1)(d) and 3(g) “at this time” and again\n\nencouraged plaintiffs to review and limit their requests and to file another, more limited FOIA\n\nrequest for consideration. On these facts, we conclude that CPD established that it complied with\n\nsection 3(g)’s threshold requirement to extend to plaintiffs an opportunity to confer in an attempt\n\nto narrow the requests. Shehadeh, 2013 IL App (4th) 120742, ¶ 32 (noting that nothing in FOIA\n\nprecludes a public body from continuing to assert the unduly burdensome exemption after a\n\nplaintiff refuses to narrow a FOIA request).\n\n¶ 35 Turning now to the elements of CPD’s claimed exemption under section 3(g), we note\n\nagain that section 3(g) of the FOIA exempts records from disclosure where a request for all records\n\nfalling within a category: (1) would be unduly burdensome for the complying public body, (2)\n\nthere is no way to narrow the request, and (3) the burden on the public body outweighs the public\n\ninterest in the information. 5 ILCS 140/3(g) (West 2020). Here, it is undisputed that plaintiffs made\n\na categorical request, where they sought all the videos and emails related to the shooting. In\n\naddition, on appeal plaintiffs do not challenge whether CPD established the second element. We\n\nwill therefore focus our analysis on the first and third elements of this test. Ill. S. Ct. R. 341(h)(7)\n\n(eff. Oct. 1, 2020) (“Points not argued are forfeited and shall not be raised in the reply brief, in\n\n - 17 -\n\fNo. 1-21-1194\n\noral argument, or on petition for rehearing.”); Sargent Shriver, 2018 IL App (1st) 171846, ¶ 28\n\n(focusing solely on the section 3(g) elements discussed by the parties on appeal).\n\n¶ 36 As to the first element, a request that is “overly broad and requires the public body to locate,\n\nreview, redact and arrange for inspection a vast quantity of material that is largely unnecessary to\n\nthe [requestor's] purpose constitutes an undue burden.” National Ass'n of Criminal Defense\n\nLawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 17 (2010). And again, the propriety of\n\na response must be judged at the time the decision denying the FOIA request was made and CPD\n\ncould establish that it met this element via both its pre-suit written communications with plaintiffs\n\nand the affidavits provided in response to these FOIA lawsuits. Supra ¶¶ 25, 31.\n\n¶ 37 Here, CPD explicitly informed plaintiffs in writing that it was experiencing strain in timely\n\nresponding to FOIA requests due to the COVID-19 pandemic and encouraged coming to an\n\nagreement to further extend the time for a response. Then, in its response letters, CPD explained\n\nthat processing plaintiffs’ requests would be unduly burdensome considering the short response\n\ntime required by FOIA and the volume of material involved. A search for responsive video\n\nreturned 71 hours of footage which would require at least 213 hours of review and 30,000\n\npotentially responsive emails review of which would take 1,000 hours at a minimum. In the\n\naffidavits CPD provided in the circuit court, Marlan affirmed the amount of material potentially\n\nresponsive to plaintiffs’ requests and that plaintiffs did not seek to limit its requests. On this record,\n\nwe conclude that CPD established by clear and convincing evidence that at the time it issued its\n\nfinal response letters it would be unduly burdensome to response to plaintiffs’ FOIA requests. See,\n\ne.g. Shehadeh, 2013 IL App (4th) 120742, ¶ 35 (review of 9,200 records deemed undue burden);\n\nSargent Shriver, 2018 IL App (1st) 171846, ¶ 35 (review of 600 reports requiring hundreds of\n\nhours deemed undue burden).\n\n - 18 -\n\fNo. 1-21-1194\n\n35 As to the third element, we conclude that CPD showed that the burden on it outweighed\n\nthe public interest in the information requested at the time CPD denied plaintiffs’ requests. 5 ILCS\n\n140/3(g) (West 2020). We have no doubt that the public has a significant interest in information\n\nrelated to this or any officer-involved shooting. However, we reject plaintiffs’ contention that CPD\n\nfailed to show that this interest was outweighed by its burden to respond where CPD established:\n\n(1) CPD had no more than 10 business days to respond to the request and plaintiffs did not respond\n\nto offers to extend that time further, (2) a response would require reviewing over 30,000 records\n\nrequiring more than 1,200 hours of work and plaintiffs did not respond to efforts to confer about\n\nthe scope of their requests, and (3) CPD did not foreclose the possibility of providing some of this\n\nrecords in the future in response to modified or limited requests, but only denied plaintiffs requests\n\n“at this time.”\n\n36 Ultimately, considering the compressed timeline and the specific facts of this case, we\n\nconclude that CPD met its burden to prove that the requested records fell within the exemptions\n\ncontained in section 3(g) of FOIA at the time it responded to plaintiffs’ requests a mere 17 days\n\nafter the shooting. The uncontradicted correspondence and affidavits provided below were not\n\nconclusory, vague, or sweeping, nor were they comprised of a mere recitation of statutory\n\nstandards. Rather, the circuit court was provided uncontradicted documents and affidavits\n\nproviding reasonably sufficient detail to allow for adequate adversary testing, and those affidavits\n\nprovided “some objective indicia that the exemption is applicable under the circumstances.”\n\n(Emphasis in original.) Illinois Education Ass’n, 204 Ill. 2d at 470-71. As such, summary judgment\n\nwas appropriate because the affidavits showed with reasonable specificity why the records fell\n\nwithin the claimed exemptions. Id.\n\n37 For the foregoing reasons, the judgment of the circuit court is affirmed.\n\n - 19 -\n\fNo. 1-21-1194\n\n38 Affirmed.\n\n\n\n\n - 20 -\n\f"} {"dedup_key":"2022 IL App (2d) 210048-U","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (2d) 210048-U","case_name":"Edgar Pal v. City of Elmhurst and Elmhurst City Council","court_level":"Appellate","appellate_district":"2nd","year":2022,"county":"Du Page","appellate_docket":"2-21-0048","circuit_docket":"20-CH-497","published":0,"authoring_justice":"Zenoff","statute":["FOIA","OMA"],"exemptions_cited":[],"public_body":"City of Elmhurst and Elmhurst City Council","requesting_party":"Edgar Pal","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The Appellate Court affirmed the dismissal of the plaintiff’s complaint alleging violations of the Open Meetings Act and FOIA, finding the record insufficient for appellate review. The defendants' cross-appeal was dismissed as moot because there was no remaining actual controversy.","best_text_source":"Court Opinions - FOIA/Pal v. The City of Elmhurst, 2022 IL App (2d) 210048-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:40.669688","site_category":"FOIA Response Process","date_decided":"2022-02-18","site_url":"/cases/2022%20IL%20App%20(2d)%20210048-U/","text_url":"/case-text/2022%20IL%20App%20(2d)%20210048-U.txt","full_text":" 2022 IL App (2d) 210048-U\n No. 2-21-0048\n Order filed February 18, 2022\n\n NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent\n except in the limited circumstances allowed under Rule 23(e)(l).\n\n_____________________________________________________________________________\n\n IN THE\n\n APPELLATE COURT OF ILLINOIS\n\n SECOND DISTRICT\n______________________________________________________________________________\n\nEDGAR PAL, ) Appeal from the Circuit Court\n ) of Du Page County.\n Plaintiff-Appellant and Counter- )\n defendant-Cross-Appellee, )\n )\nv. ) No. 20-CH-497\n )\nTHE CITY OF ELMHURST and ELMHURST )\nCITY COUNCIL, )\n ) Honorable\n Defendants-Appellees and Counter- ) Paul M. Fullerton,\n plaintiffs-Cross-Appellants. ) Judge, Presiding.\n\n______________________________________________________________________________\n\n JUSTICE ZENOFF delivered the judgment of the court.\n Presiding Justice Bridges and Justice Schostok concurred in the judgment.\n\n ORDER\n\n¶1 Held: The Appellate Court affirmed the dismissal of the plaintiff’s complaint where the\n record was insufficient for review; the defendants’ cross-appeal was dismissed as\n moot.\n\n¶2 Plaintiff, Edgar Pal, appeals an order of the circuit court of Du Page County dismissing\n\nwith prejudice his complaint against defendants, the City of Elmhurst (City) and the Elmhurst City\n\nCouncil (City Council) arising out of alleged violations of the Open Meetings Act (OMA) (5 ILCS\n\f2022 IL App (2d) 210048-U\n\n\n120/1 et seq. (West 2018)) and the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq.\n\n(West 2018)). Defendants cross-appeal an order dismissing their affirmative defense and\n\ncounterclaim. As to plaintiff’s appeal, we affirm. We dismiss as moot defendants’ cross-appeal.\n\n¶3 I. BACKGROUND\n\n¶4 A. The Complaint\n\n¶5 On August 14, 2020, plaintiff filed a four-count complaint against defendants stemming\n\nfrom a closed session of a June 15, 2020, city council meeting. Paragraph 12 of the complaint\n\nalleged as follows:\n\n “The closed session included discussion about the Public Works Director retiring\n\n and that the City Manager requested permission to fill the position. There was discussion\n\n about identifying the position as a leadership role as well as the projects that would be\n\n assigned to the position. ELMHURST CITY COUNCIL proceeded to reach a consensus\n\n to recruit external and internal candidates with the possibility of appointing an interim\n\n director.”\n\nPlaintiff alleged that OMA does not authorize such generalized discussions to occur in a closed\n\nsession, but that, pursuant to section 2(c)(1) of OMA (5 ILCS 120/2(c)(1) (West 2018)), closed\n\nsessions are limited to discussions of the merits and conduct of specific employees and candidates.\n\nThe complaint further alleged that plaintiff had made FOIA requests of the City for “any audio,\n\nvideo, or verbatim recordings” of the June 15, 2020, city council meeting and that the City had\n\nproduced a recording of the open session only. Count I of the complaint alleged a violation of\n\nOMA, and counts II, III, and IV alleged FOIA violations. Plaintiff included a prayer for production\n\nof the requested records, injunctive relief, and attorney fees and costs.\n\n¶6 B. Defendants’ Affirmative Defense and Counterclaim\n\n\n\n -2-\n\f2022 IL App (2d) 210048-U\n\n\n¶7 Defendants filed an affirmative defense claiming that plaintiff violated their “statutory\n\nprivilege” to keep the minutes of the closed session secret. Specifically, defendants alleged that\n\nplaintiff downloaded the minutes of the closed session (summarized in paragraph 12 of the\n\ncomplaint), which were inadvertently posted on the City’s website, and then used that information\n\nto sue defendants. Defendants premised this affirmative defense upon the following grounds.\n\n¶8 The City’s official website contains a link to another site, which is where the City stores\n\nelectronic documents, including city council meeting minutes of both open and closed sessions.\n\nThe contents of the June 15, 2020, closed session were briefly posted on that site. On August 17,\n\n2020, the City was notified by the Illinois Attorney General’s office that plaintiff had requested a\n\nreview of the June 15, 2020, closed session to determine whether it violated OMA. Plaintiff\n\nattached a copy of the closed-session minutes of the June 15, 2020, hearing to his request.\n\nAccording to plaintiff’s correspondence with the Attorney General’s office, plaintiff obtained\n\nthose minutes by downloading them from the City’s site on the evening of July 2, 2020. 1 The\n\nAttorney General then advised the City that, because plaintiff had filed a lawsuit, the Attorney\n\nGeneral would take no action on plaintiff’s request for a review. Section 2.06 of OMA (5 ILCS\n\n120/2.06 (West 2018)) provides that minutes of closed sessions shall be available to the public\n\nonly after the relevant public body determines that it is no longer necessary to protect the public\n\ninterest or the privacy of an individual by keeping them confidential. Section 206(d) of OMA (5\n\nILCS 120/206(d) (West 2018)) provides that a public body shall periodically, but no less often\n\nthan semi-annually, determine whether the need for confidentiality in such minutes still exists or\n\nwhether the minutes no longer require confidential treatment and are available for public\n\n\n\n 1\n Defendants did not attach a copy of the closed-session minutes to its court filings.\n\n\n\n -3-\n\f2022 IL App (2d) 210048-U\n\n\ninspection. When plaintiff downloaded the minutes of the June 15, 2020, closed session, the City\n\nhad not yet made a determination that confidentiality no longer existed. Section 206(f) of OMA (5\n\nILCS 120/206(f) (West 2018)) provides that “no minutes of meetings closed to the public shall be\n\nremoved” from the public body’s official storage location prior to such determination, except by\n\ncourt order or vote of the public body. Section 4 of OMA (5 ILCS 120/4 (West 2018)) makes such\n\nremoval without a court order or vote of the public body a Class C misdemeanor. When plaintiff\n\ndownloaded and removed the minutes of the June 15, 2020, closed session, he knew or should\n\nhave known that the City had not determined that they were no longer confidential. Defendants\n\nconcluded that plaintiff “invaded the statutory privilege afforded the minutes by Section 2.06 of\n\nOMA ***.” Based on these same grounds, defendants filed a counterclaim against plaintiff.\n\n¶9 Plaintiff moved to dismiss the affirmative defense pursuant to section 2-615 of the Code\n\nof Civil Procedure (Code) (735 ILCS 5/2-615 (West 2018)) on the basis that section 2.06 of OMA\n\nis irrelevant to the complaint’s claim that the closed session violated OMA. Plaintiff moved to\n\ndismiss the counterclaim, without identifying specific statutory references, on the bases that the\n\nstatute of limitations had expired and that OMA is not a vehicle for governmental entities to sue\n\nprivate citizens. Plaintiff later withdrew his statute-of-limitations argument.\n\n¶ 10 C. Defendants’ Motion to Strike and Dismiss the Complaint\n\n¶ 11 Defendants moved to strike paragraph 12 of the complaint, which purportedly summarized\n\nthe contents of the June 15, 2020, closed session minutes. Defendants claimed that the subject\n\nmatter of paragraph 12 was protected by the “statutory privilege” contained in section 2.06(f) of\n\nOMA. Defendants requested the court to conduct an in camera review of the minutes of the closed\n\nsession to determine whether paragraph 12 violated the “privilege.” Defendants also moved\n\npursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2018)) to dismiss\n\n\n\n -4-\n\f2022 IL App (2d) 210048-U\n\n\ncounts II, III, and IV of the complaint—the FOIA allegations. Defendants argued that the City had\n\nnot yet determined, pursuant to section 206(d) of OMA, whether the minutes of the June 15, 2020,\n\nclosed session should remain confidential when plaintiff made his FOIA requests. Therefore,\n\ndefendants reasoned, they did not violate FOIA in failing to produce the documents requested.\n\n¶ 12 At a hearing before the court on October 27, 2020, both sides asked the court to review the\n\nminutes and the recording of the June 15, 2020, closed session. The court’s October 27, 2020,\n\nwritten order stated that defendants “are to provide the Court with a copy of the executive session\n\nminutes of [the] June 15, 2020, meeting as well as a copy of [the] verbatim recording for [the] June\n\n15, 2020, meeting for in camera review ***.” The record shows that defendants furnished the court\n\nwith those items, but they were not made part of the record on appeal. On October 27, 2020, the\n\ncourt also stayed oral discovery pending ruling on the various motions.\n\n¶ 13 D. The Court’s Rulings on Plaintiff’s Motions\n\n¶ 14 On November 23, 2020, the court granted plaintiff’s motion to dismiss the affirmative\n\ndefense “for the reasons set forth in the motion to dismiss.” Next, the court granted the motion to\n\ndismiss the counterclaim, saying, “I don’t believe [OMA] provides that type of cause of action.”\n\n¶ 15 The court then addressed the “actual recording at issue.” The court stated that it had listened\n\nto the recording and that a limited portion of the closed discussion about the public works director\n\nwas general and accessible to the public, but the remaining portion was subject to closed session.\n\nPlaintiff requested production of the portion that was general. The court stated that there were “two\n\nminutes” of “open” discussion. Defendants objected to plaintiff’s request and asserted that the\n\npurpose for furnishing the recording to the court was only to resolve a discovery dispute and not\n\nto resolve the merits of the case. Defendants noted that their motion to strike paragraph 12 of the\n\ncomplaint and to dismiss the FOIA counts of the complaint was still pending. The court continued\n\n\n\n -5-\n\f2022 IL App (2d) 210048-U\n\n\nthe matter for ruling on that motion, noting that it was not granting plaintiff any relief on the merits\n\nof the lawsuit.\n\n¶ 16 E. The Court’s Ruling on Defendants’ Motion to Strike and Dismiss\n\n¶ 17 On January 6, 2021, defendants argued their motion to strike paragraph 12 of the complaint.\n\nPlaintiff then stated that the complaint included the entire closed session, not only that portion of\n\nit devoted to the public works director. Thus, plaintiff, in effect, amended the complaint, albeit\n\nwithout leave of court but also without objection. Plaintiff then invited the court, without objection,\n\nto rule on the merits of his OMA claim. The court indicated that it had again listened to the entire\n\naudio recording of the June 15, 2020, closed session. The court noted that the meeting lasted “just\n\nless” than an hour, with the first 16 minutes taken up with resolving electronic issues. After the\n\nroll call was taken at 16 ½ minutes, discussion regarding the public works director took\n\napproximately seven and a half minutes. The court then noted that the minutes of the closed session\n\nhad been inadvertently disclosed on the City’s website. The court found that four topics were\n\ndiscussed during that session and that each topic was subject in its entirety to closed session. The\n\ncourt specifically retracted its previous remarks to the effect that part of the discussion regarding\n\nthe public works director was not subject to closed session. The court stated: “So to the extent\n\nthat’s what I indicated at that last hearing in November, I would reverse that because in listening\n\nto the entire discussion, and not just the entire discussion on the public works director, but the\n\nentire discussion for the closed session, there is nothing in there that would violate the Open\n\nMeetings Act.” The court granted defendants’ motion to dismiss counts II, III, and IV of the\n\ncomplaint because there was no FOIA violation. The court then noted that its ruling depended\n\nupon its belief, after having listened to the entire recording again, that “there’s nothing in that tape\n\nthat violates the Open Meetings Act.” “So I’m dismissing the complaint,” the court declared.\n\n\n\n -6-\n\f2022 IL App (2d) 210048-U\n\n\n¶ 18 The court then inquired of counsel for defendants whether defendants were asking the court\n\nto order plaintiff to return to the City the minutes of the closed session that he had downloaded.\n\n“[T]hat is not something I’m going to do,” the court ruled. Counsel for defendants stated: “I think\n\nthe cat’s out of the bag, Your Honor.” Counsel expressed concern that plaintiff “is downloading\n\nand removing” minutes from the storage site, but expressed “hope that in the future [plaintiff]\n\nwould not engage in that behavior and not bring lawsuits against the City for information\n\nimproperly obtained.” The court said, “I’m not going to rule one way or another on that issue.”\n\nThe court opined that the correct way to handle a future situation would be for the court to listen\n\nto any recording in camera and “determine whether there’s a violation of [OMA].”\n\n¶ 19 The court’s written order of January 6, 2021, reflected that defendants’ motion to dismiss\n\ncounts II, III, and IV was granted and that counts I, II, III, and IV of the complaint were dismissed\n\nwith prejudice. Plaintiff filed a timely notice of appeal. Defendants filed a timely notice of cross-\n\nappeal.\n\n¶ 20 II. ANALYSIS\n\n¶ 21 A. Plaintiff’s Appeal\n\n¶ 22 Plaintiff raises the sole issue of whether the court properly dismissed his complaint. This\n\nappeal comes to us after an unusual procedural history. Defendants moved to dismiss counts II,\n\nIII, and IV of the complaint, which alleged FOIA violations. Those alleged FOIA violations were\n\npredicated upon defendants’ alleged violation of OMA. Defendants did not challenge the legal\n\nsufficiency of count I of the complaint, which alleged the OMA violation. Instead, defendants\n\nadmitted the legal sufficiency of count I but interposed the affirmative defense that plaintiff\n\ndownloaded minutes of a closed session in violation of a purported statutory privilege allowing\n\ndefendants to maintain the secrecy of those minutes. Defendants also moved to strike paragraph\n\n\n\n -7-\n\f2022 IL App (2d) 210048-U\n\n\n12 of the complaint on the basis of that purported privilege. Defendants counterclaimed against\n\nplaintiff for violation of the purported privilege. The court dismissed the affirmative defense\n\nbecause it did not meet the requirements of an affirmative defense. The court dismissed the\n\ncounterclaim on the basis that OMA does not permit a public body to sue a private citizen for its\n\nbreach.\n\n¶ 23 Things took a procedural shortcut at the January 6, 2021, hearing. The court had continued\n\nthe matter to January 6 for ruling on defendants’ motion to strike paragraph 12 of the complaint\n\nand to dismiss counts II through IV. Paragraph 12 dealt only with that part of the closed city council\n\nmeeting regarding the public works director. After defendants argued their motion to strike\n\nparagraph 12 of the complaint, plaintiff orally amended his complaint to include the entire closed\n\nsession of the June 15, 2020, city council meeting. Plaintiff then suggested that the court should\n\nrule on the merits of count I, the alleged OMA violation. Defendants did not object to this\n\nprocedure. The court ruled that count I of the complaint failed to state a claim upon which relief\n\ncould be granted. The court found that the recording of the June 15, 2020, closed session\n\ndemonstrated that the entire closed session fell within OMA’s exceptions. The court granted\n\ndefendants’ motion to dismiss counts II, III, and IV of the complaint because they depended upon\n\nthe viability of count I. The court did not rule on defendants’ motion to strike paragraph 12 of the\n\ncomplaint because that motion was rendered moot by the court’s sua sponte dismissal with\n\nprejudice of count I.\n\n¶ 24 Because the court dismissed count I of the complaint on the basis of the recording of the\n\nclosed meeting, the dismissal was not based on matters appearing on the face of the pleading.\n\nTherefore, the dismissal was effectively pursuant to section 2-619(a)(9) of the Code (735 ILCS\n\n5/2-619(a)(9) (West 2018)). A section 2-619(a)(9) dismissal is on grounds that the claim asserted\n\n\n\n -8-\n\f2022 IL App (2d) 210048-U\n\n\nagainst the defendant is barred by other affirmative matter outside the complaint that avoids the\n\nlegal effect of, or defeats, the claim. Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App\n\n(4th) 120139, ¶ ¶ 30-31. The purpose of section 2-619(a)(9) is to provide a method of disposing of\n\nissues of law and easily proved issues of fact relating to the affirmative matter early in the\n\nlitigation. Reynolds, 2013 IL App (4th) 120139, ¶ 30. The court should grant a 2-619(a)(9) motion\n\nto dismiss only if the plaintiff can prove no set of facts that would support a cause of action.\n\nReynolds, 2013 IL App (4th) 120139, ¶ 31. We review de novo a section 2-619(a)(9) dismissal.\n\n¶ 25 1. Statutes Involved\n\n¶ 26 a. OMA\n\n¶ 27 OMA provides that public agencies exist to aid in the conduct of the people’s business.\n\nGosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989). To that end, OMA’s intent is to assure that an\n\nagency’s actions be taken openly and that deliberations be conducted openly. Gosnell, 179 Ill.\n\nApp. 3d at 171. Section 2(a) of OMA requires that “all meetings of public bodies shall be open to\n\nthe public” unless excepted in section 2(c). 5 ILCS 120/2(a) (West 2018). Section 2(c)(1) provides\n\nthat a public body may hold closed meetings to consider the “appointment, employment,\n\ncompensation, discipline, performance or dismissal” of “specific employees ***.” 5 ILCS\n\n120/2(c)(1) (West 2018). Exceptions allowing closed meetings are narrowly construed because\n\nthey derogate the legislature’s general policy of open meetings. Gosnell, 179 Ill. App. 3d at 171.\n\nHowever, every instance in which a public body’s actions do not squarely meet the language of\n\nthe exceptions will not constitute a violation of OMA. Gosnell, 179 Ill. App. 3d at 171. Rather, the\n\nstatutory language and the legislature’s intent expressed therein must be “interpreted and applied\n\non the facts of each case.” Gosnell, 179 Ill. App. 3d at 171.\n\n¶ 28 b. FOIA\n\n\n\n -9-\n\f2022 IL App (2d) 210048-U\n\n\n¶ 29 FOIA’s purpose is to open government records to public scrutiny. Chicago Tribune Co. v.\n\nCook County Assessor’s Office, 2018 IL App (1st) 170455, ¶ 21. FOIA implements the\n\nlegislature’s public policy to provide Illinois citizens full access to information regarding\n\ngovernmental affairs. Chicago Alliance for Neighborhood Safety v. City of Chicago, 348 Ill. App.\n\n3d 188, 198 (2004). Public records are presumed to be open and accessible. Chicago Tribune, 2018\n\nIL App (1st) 170455, ¶ 21. When a public body receives a request for information, it must comply\n\nunless a statutory exemption applies. Chicago Tribune, 2018 IL App (1st) 170455, ¶ 21.\n\n¶ 30 2. Plaintiff’s Contentions\n\n¶ 31 Plaintiff asks us to reverse the dismissal of his complaint. He frames the single issue that\n\nhe raises thusly: “May a public body conduct generalized discussions about job positions, job\n\nresponsibilities, and job recruitment plans in closed session despite the fact that OMA Section\n\n2(c)(1) applies only to discussions about ‘specific employees’ ” ?\n\n¶ 32 Plaintiff’s four-paragraph argument for reversal flows from his premise that the court (1)\n\nlistened to the recording of that closed session, (2) concluded from listening to that recording that\n\nthe City Council engaged in generalized discussions, and (3) ruled that generalized discussions\n\ncan be held in closed session despite OMA’s section 2(c)(1) provision to the contrary. Plaintiff\n\nsummed up the basis for his argument in one paragraph:\n\n “The circuit court performed an in camera review of the closed session at issue and\n\n did not disagree that there were generalized discussions about the Public Works Director\n\n retiring and the City Manager requesting to fill the position; about identifying the position\n\n as a leadership role as well as the projects that would be assigned to the position; and about\n\n reaching a consensus to recruit external and internal candidates with the possibility of\n\n appointing an interim director (i.e. there is no factual dispute). What the circuit court ruled\n\n\n\n - 10 -\n\f2022 IL App (2d) 210048-U\n\n\n was that Section 2(c)(1) [of OMA] exempts such generalized discussions. But that is\n\n incorrect as a matter of law.”\n\n¶ 33 Plaintiff failed to include citations to the record in making this argument, which depends\n\nupon factual assertions. We divert here to consider defendants’ motion to strike plaintiff’s brief,\n\nor in the alternative forfeit his argument, for failing to do so. Illinois Supreme Court Rule 341(h)(7)\n\n(eff. Oct. 1, 2020) requires the appellant to include references to pages of the record relied on for\n\nargument. Oruta v. B.E.W. & Continental, 2016 IL App (1st) 152735, ¶ 35. The purpose of this\n\nrequirement is so that we can ascertain whether the facts as presented by the appellant’s argument\n\nare an accurate portrayal of the record. Oruta, 2016 IL App (1st) 152735, ¶ 35. We may strike a\n\nbrief for procedural violations when those violations interfere with our review of the issue. Wing\n\nv. Chicago Transit Authority, 2016 IL App (1st) 153157, ¶ 11. Here, the reports of proceedings\n\nconsist of three short court hearings at which no evidence was taken. The lack of record references\n\ndoes not hinder our review. Consequently, we decline to strike either the argument or plaintiff’s\n\nbrief. However, we admonish counsel for plaintiff that rules of procedure for appellate briefs are\n\nrules and not mere suggestions. Wing, 2016 IL App (1st) 153157, ¶ 11.\n\n¶ 34 Defendants also argue that plaintiff has forfeited any contention that the court’s dismissal\n\nof the FOIA counts of the complaint was error, as plaintiff makes no argument regarding his FOIA\n\nallegations. Rule 341(h)(7) requires briefs to contain argument, which consists of “contentions of\n\nthe appellant and the reasons therefor, with citations of the authorities and the pages of the record\n\nrelied on.” Ill. S. Ct. R. 341(h)(7). Consistent with the plain language of Rule 341(h)(7), our\n\nsupreme court has made clear that the failure to argue a point in the appellant’s opening brief\n\nresults in forfeiture of the issue. Vancura v. Katris, 238 Ill. 2d 352, 369 (2010). In his reply brief,\n\nplaintiff asserts that he complied with Rule 341 because the FOIA allegations are dependent upon\n\n\n\n - 11 -\n\f2022 IL App (2d) 210048-U\n\n\nthe success of the OMA count. In other words, if we reverse the dismissal of the OMA count, we\n\nnecessarily must reverse the dismissal of the FOIA counts. We disagree that this reasoning excuses\n\nplaintiff’s failure to make any argument regarding the dismissal of the FOIA counts. Nevertheless,\n\nwe decline to impose forfeiture in this instance because we must affirm the dismissal of the\n\ncomplaint on the basis that plaintiff has failed to give us an adequate record upon which we can\n\nreview the dismissal of the complaint. See Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984)\n\n(reviewing court will presume that the trial court’s order was in conformity with the law and had\n\na sufficient factual basis where the record is insufficiently complete to support a claim of error).\n\n¶ 35 Plaintiff’s argument rests on two factual assertions about the court’s findings and ruling.\n\nFirst, plaintiff asserts that the court “did not disagree” that there were “generalized discussions”\n\nabout the public works director’s position during the June 15, 2020, closed session. Second,\n\nplaintiff asserts that the court ruled that section 2(c)(1) of OMA exempts such generalized\n\ndiscussions. Both of these assertions are serious misrepresentations of the record.\n\n¶ 36 On October 27, 2020, the parties appeared before the court and agreed on a briefing\n\nschedule regarding motions. Defendants then suggested that oral discovery be stayed pending the\n\ncourt’s in camera review of the recording and minutes of the June 15, 2020, closed session.\n\nPlaintiff objected to staying discovery. Defendants then stated that their motion to strike paragraph\n\n12 of the complaint was pending and that they had requested the court to review the recording and\n\nminutes of the closed session before ruling on that motion. The court stated: “Because I will need\n\nthat for the hearing on November 23.” Defendants’ counsel replied: “That’s correct, Your Honor.”\n\nPlaintiff’s counsel said, “It’s unclear to me how that would be relevant to the motion. But we\n\ncertainly, you know, would like Your Honor to review those items, as well.” The court then ordered\n\nthat depositions be stayed until after November 23.\n\n\n\n - 12 -\n\f2022 IL App (2d) 210048-U\n\n\n¶ 37 On November 23, 2020, the matter was before the court for ruling on motions. The court\n\ngranted plaintiff’s motions to dismiss the affirmative defense and counterclaim. Then, the court\n\nstated: “But now if I can turn to the actual recording at issue. *** So I listened to it.”\n\n “[THE COURT]: Okay. So three minutes into it, three minutes and forty seconds\n\n into it it goes mute. There’s obviously a discussion between Council [sic] and somebody\n\n for the City of Elmhurst. So I can’t really hear what happens in that time period. But after\n\n that time period and, again, all still in executive session, they’re talking about specific\n\n people may have succession to this executive or Public Works Director position.\n\n The position—There was a hiring freeze, but the City of Elmhurst wanted to fill\n\n this specific position; and then that was the discussion. The Court—This is clearly subject\n\n to closed session. It falls within the statute. So maybe the first two minutes of that doesn’t\n\n fall within the statute, but—because it’s general about the actual position to be filled. But\n\n once I can hear sound again, which is at one hour, five minutes, it’s clearly subject to\n\n executive session.”\n\nWhen plaintiff’s counsel stated that the minutes, but not the recording, had been posted on the\n\nCity’s website, the court said, “Well, I’m telling you it’s subject to closed session.” Plaintiff’s\n\ncounsel inquired: “And does that mean that paragraph 12 of the complaint is inaccurate?” The\n\ncourt responded: “So I’d say for the first two minutes of [the discussion about the public works\n\ndirector] it would be general because all they were talking about was there’s a hiring freeze in the\n\nVillage, but the Village manager wanted to fill the Public Works Director position.” The court\n\nadded: “But after one hour and five minutes they were clearly talking about specific employees\n\nand a specific succession plan proposed possible [sic]. And those are—Clearly, that falls within\n\n[section] 2(c)(1). So it’s subject to closed session.”\n\n\n\n - 13 -\n\f2022 IL App (2d) 210048-U\n\n\n¶ 38 Plaintiff’s counsel then requested that the portion not subject to closed session be disclosed.\n\nThe court said, “You’ve got two minutes” of “open discussion.” Defendants then objected to\n\ngiving plaintiff any relief on the merits because their motion to strike paragraph 12 of the complaint\n\nand to dimiss counts II through IV of the complaint had not been heard. The court realized that it\n\nhad not addressed those matters, nor was it prepared to do so. The court continued the matter for\n\nruling on defendants’ motions and agreed that it was not ruling on the merits of plaintiff’s OMA\n\nclaim.\n\n¶ 39 The parties were next before the court on January 6, 2021. Defendants argued their motion\n\nto strike paragraph 12 of the complaint and to dismiss the FOIA counts. Plaintiff responded by\n\narguing that he was challenging the entire closed session, not only that part of it related to the\n\npublic works director. “As a practical matter,” plaintiff’s counsel stated, “even if we took\n\nparagraph 12 out of the complaint, that doesn’t change the nature of the case. We’re still\n\nchallenging the executive session, and it’s still [defendants’] burden to prove that any topics\n\ndiscussed in the executive session were properly discussed there.” After plaintiff’s counsel orally\n\nbroadened the complaint, he suggested that “what often happens in these circumstances is that\n\njudges review” everything that was discussed and determine whether anything is exempt from\n\nOMA. Then, the following occurred:\n\n “[THE COURT]: Okay. Well, I guess, then, let me cut to the chase, because what\n\n I did is I went back and I listened to the entire audio recording. *** I listened to the whole\n\n tape. There’s nothing in that tape that violates the Open Meetings Act. Everything that was\n\n discussed falls within specifically 120/2 and (c), those exceptions where a public body can\n\n hold closed meetings to consider the following subjects. And the subjects that were\n\n considered are all subjects that fall within that exception.\n\n\n\n - 14 -\n\f2022 IL App (2d) 210048-U\n\n\n So I’m dismissing the complaint. I guess in dismissing that complaint, I’m striking\n\n the allegations of count I. I would dismiss count I, it [sic] does not violate the Open\n\n Meetings Act. I have listened to the whole tape and counts II through IV also fall for those\n\n reasons I previously stated.”\n\n¶ 40 Plaintiff’s counsel then inquired, as follows:\n\n “[MR. BURDAY]: *** Did you—The last time we had been before Your Honor,\n\n you said that there were a couple of minutes that were talked about that were not\n\n properly subject to the closed session.”\n\nThe court responded:\n\n “[THE COURT]: I said that. And in review I went back and listened to it again.\n\n Really, they were introductory comments discussing the public works director, and I\n\n understand the specificity that is required. But the introductory comments are not—they\n\n are not something that—it would still not be subject to an exemption under the Open\n\n Meetings Act, specifically 2c, Section 2c.\n\n So to the extent that’s what I indicated at that last hearing in November, I would\n\n reverse that because in listening to the entire discussion, and not just the entire discussion\n\n on the public works director, but the entire discussion for the closed session, there is\n\n nothing in there that would violate the Open Meetings Act.” (Emphasis added).\n\nThe court then indicated that its order was dismissal of the complaint with prejudice.\n\n¶ 41 The record leaves no doubt that the court found that the entire closed session did not violate\n\nOMA and that it dismissed the complaint with prejudice because the recording showed that nothing\n\ndiscussed in the closed session violated OMA. Therefore, plaintiff’s premise—that the court ruled\n\n\n\n\n - 15 -\n\f2022 IL App (2d) 210048-U\n\n\nthat generalized discussions occurred but are nevertheless subject to closed session—is, at best,\n\nfaulty.\n\n¶ 42 Defendants contend that the dismissal of count I of the complaint should be affirmed\n\nbecause of the statutory privilege that they asserted in their motion to strike paragraph 12 of the\n\ncomplaint. This argument misses the mark because it does not address the substance of plaintiff’s\n\nargument. We also do not reach this argument because the motion to strike paragraph 12 was\n\nrendered moot by the court’s dismissal with prejudice of count I of the complaint. The motion to\n\nstrike paragraph 12 was also rendered moot when plaintiff—without objection—essentially\n\nabandoned paragraph 12 and orally amended his complaint to include everything discussed in the\n\nJune 15, 2020, closed session and then invited the court to rule on the merits of count I. Ordinarily,\n\namended pleadings supersede prior pleadings. Snitowsky v. NBC Subsidiary (WMAQ-TV), Inc.,\n\n297 Ill. App. 3d 304, 315 (1998).\n\n¶ 43 Similarly, we need not address defendants’ argument that counts II through IV of the\n\ncomplaint were properly dismissed because of the purported statutory privilege. The court\n\ndismissed those counts, which alleged FOIA violations, because they were dependent upon the\n\nallegations in count I. If there was no OMA violation, it follows that defendants did not violate\n\nFOIA in failing to produce the recording and minutes of the closed session.\n\n¶ 44 Here, the court, after listening to the entire recording, found that nothing in the closed\n\nsession violated OMA. We can reverse the judgment only if the court’s finding was erroneous.\n\nHowever, plaintiff did not include the recording, or the minutes, of the June 15, 2020, closed\n\nsession as part of the appellate record, so we are unable to review them to determine whether error\n\noccurred. The appellant has the burden to present a sufficiently complete record of trial\n\nproceedings to support a claim of error. Foutch, 99 Ill. 2d at 391. In the absence of such a record,\n\n\n\n - 16 -\n\f2022 IL App (2d) 210048-U\n\n\nit will be presumed that the trial court’s order was in conformity with the law and had a sufficient\n\nfactual basis. Foutch, 99 Ill. 2d at 392. Any doubts arising from the record’s incompleteness will\n\nbe resolved against the appellant. Foutch, 99 Ill. 2d at 392.\n\n¶ 45 On January 31, 2022, plaintiff moved to supplement the appellate record with the recording\n\nof the June 15, 2020, closed session and the minutes of that session. Defendants filed objections.\n\nWe denied the motion to supplement the record because briefing was completed on December 13,\n\n2021, and the case was ready for decision. Plaintiff’s tardiness in bringing the motion to\n\nsupplement the record would have required us to order supplemental briefing, as neither party\n\naddressed the contents of the minutes and recording in their briefs. In In re Marriage of Sharp,\n\n369 Ill. App. 3d 271, 275 (2006), this court denied a motion for leave to supplement the record\n\nwith a trust after all briefing was completed and the opposing party did not argue the merits of the\n\nissue in her brief because the trust was not part of the record. We said, “[g]iven the tardiness of\n\nrespondent’s motion to supplement, petitioner would be unduly prejudiced.” Sharp, 369 Ill. App.\n\n3d at 275. “Permitting respondent to supplement the record would set a dangerous precedent for\n\nallowing piecemeal creation of the record, with supplemental briefing and rebriefing, derogating\n\nthe appellate process.” Sharp, 369 Ill. App. 3d at 275. We believe that Sharp is apposite.\n\nAccordingly, we affirm the court’s dismissal with prejudice of plaintiff’s complaint pursuant to\n\nthe principles outlined in Foutch.\n\n¶ 46 B. Defendants’ Cross-Appeal\n\n¶ 47 1. The Affirmative Defense\n\n¶ 48 Defendants contend that the court improperly dismissed their affirmative defense. An\n\n“affirmative defense” is one that gives color to the plaintiff’s claim but asserts new matter to defeat\n\nthe plaintiff’s apparent right to relief. Hartmann Realtors v. Biffar, 2014 IL App (5th) 130543, ¶\n\n\n\n - 17 -\n\f2022 IL App (2d) 210048-U\n\n\n20. A motion to strike an affirmative defense pursuant to section 2-615 of the Code (735 ILCS\n\n5/2-615 (West 2018)) challenges the legal sufficiency of the affirmative defense. Biffar, 2014 IL\n\nApp (5th) 130543, ¶ 20. The grant of a motion to strike an affirmative defense is reviewed de novo.\n\nBiffar, 2014 IL App (5th) 130543, ¶ 20.\n\n¶ 49 Here, defendants argued before the trial court that section 2.06 of OMA creates a privilege\n\nin the minutes of closed sessions, which plaintiff invaded when he downloaded the minutes of the\n\nJune 15, 2020, closed session that defendants had posted. Section 206(d) provides that the public\n\nbody, no less often than semi-annually, shall review the minutes of all closed meetings to\n\ndetermine whether the need for confidentiality still exists. Section 2.06(f) provides that minutes of\n\nclosed meetings are not available to the public unless the public body has made the determination\n\nthat confidentiality in such minutes no longer exists. Plaintiff moved to dismiss the affirmative\n\ndefense on the ground that section 2.06 is irrelevant to whether the June 15, 2020, session was\n\nproperly closed in the first instance. The court granted the motion to dismiss the affirmative\n\ndefense for the reason plaintiff urged in the motion to dismiss.\n\n¶ 50 After the court dismissed the affirmative defense, it considered defendants’ motion to strike\n\nparagraph 12 of count I. However, during the argument on the motion to strike, plaintiff effectively\n\njettisoned paragraph 12 and orally amended the complaint to include the entire closed session.\n\nPlaintiff then invited the court to rule on the merits of count I. The court found that, after listening\n\nto the recording, defendants did not violate OMA. Defendants did not object to this irregular\n\nprocedure. Moreover, they benefitted from it inasmuch as the court—instead of striking paragraph\n\n12—dismissed with prejudice the entire complaint. Even if we were to hold that the court\n\nerroneously dismissed the affirmative defense, we can grant defendants no effectual relief because\n\nwe have determined that the complaint was properly dismissed with prejudice. Plaintiff cannot\n\n\n\n - 18 -\n\f2022 IL App (2d) 210048-U\n\n\nrevive his complaint. Therefore, the controversy over which defendants asserted the affirmative\n\ndefense no longer exists. An issue is moot where no actual controversy exists or where events\n\noccur that make it impossible for us to grant effectual relief. Wheatley v. Board of Education of\n\nTownship High School District 205, 99 Ill. 2d 481, 484-85 (1984).\n\n¶ 51 2. The Counterclaim\n\n¶ 52 Defendants sought a declaratory judgment pursuant to section 2-701 of the Code (735 ILCS\n\n5/2-701 (West 2018)) that the City has a statutory privilege in the secrecy of minutes of a closed\n\nsession, to enjoin plaintiff from future violations of the privilege, for costs, and for such further\n\nrelief as the court deemed appropriate. Section 2-701(a) provides in pertinent part that the court\n\n“may, in cases of actual controversy, make binding declarations of rights, having the force of final\n\njudgments.” 735 ILCS 5/2-701(a) (West 2018). Plaintiff filed a motion to dismiss the\n\ncounterclaim, without designating under which section of the Code that he brought the motion, on\n\nthe ground that OMA does not allow suits by public bodies against private individuals under these\n\ncircumstances. The court granted the motion to dismiss the counterclaim on that basis. We review\n\nde novo the dismissal of a complaint under either 2-615 or 2-619 of the Code. Zahl v. Krupa, 365\n\nIll. App. 3d 653, 658 (2006).\n\n¶ 53 Defendants argue that (1) section 2.06 of OMA creates a privilege on behalf of a public\n\nbody in the confidentiality of minutes of closed meetings and (2) section 3(a) of OMA (5 ILCS\n\n120/3(a) (West 2018)) creates a cause of action on behalf of a public body against a citizen for\n\nviolation of that privilege. However, we do not reach the issues raised because the counterclaim\n\nwas rendered moot by the dismissal with prejudice of plaintiff’s complaint. After the court\n\ndismissed the entire complaint with prejudice, it indicated that it would not order plaintiff to return\n\nto the City the minutes of the June 15, 2020, closed session that he had downloaded. Counsel for\n\n\n\n - 19 -\n\f2022 IL App (2d) 210048-U\n\n\nthe City seemed to agree when he said, “I think the cat’s out of the bag, Your Honor.” Counsel\n\nthen expressed concern that plaintiff would violate OMA in the future, but the court noted that the\n\ncorrect procedure in the future would be for the court to listen to any recording and make a\n\ndetermination then whether OMA was violated. Generally, reviewing courts will not decide moot\n\nquestions, render advisory opinions, or consider issues where the result would not be affected\n\nregardless of how those issues are determined. Commonwealth Edison Co. v. Illinois Commerce\n\nCom’n, 2016 IL 118129, ¶ 10. Here, after the complaint’s dismissal with prejudice, which we\n\naffirm, there is no controversy before us. The only issue would be plaintiff’s imagined future\n\nviolations. To have an actual controversy for purposes of a declaratory judgment, a party must\n\ndemonstrate that the underlying facts and issues are not moot or premature, so as to require the\n\ncourt to decide mere abstract propositions of law, render advisory opinions, or give legal advice\n\nas to future events. AEH Construction, Inc. v. Department of Labor, 318 Ill. App. 3d 1158, 1161\n\n(2001). Accordingly, we dismiss defendants’ cross-appeal as moot.\n\n¶ 54 III. CONCLUSION\n\n¶ 55 For the foregoing reasons, as to plaintiff’s appeal, the judgment of the circuit court of Du\n\nPage County is affirmed. We dismiss the cross-appeal as moot.\n\n¶ 56 Appeal, affirmed; cross-appeal, dismissed.\n\n\n\n\n - 20 -\n\f"} {"dedup_key":"2022 IL App (2d) 210107-U","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (2d) 210107-U","case_name":"Robinson v. Township High School District 113","court_level":"Appellate","appellate_district":"2nd","year":2022,"county":"Lake","appellate_docket":"2-21-0107","circuit_docket":"19-CH-1318","published":0,"authoring_justice":"Zenoff","statute":["FOIA"],"exemptions_cited":[],"public_body":"Township High School District 113","requesting_party":"Mary Robinson","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court affirmed the trial court's denial of FOIA disclosure because the plaintiff failed to include the in camera emails in the record on appeal. Consequently, the court presumed the trial court's ruling was in conformity with the law and had a sufficient factual basis.","best_text_source":"Court Opinions - FOIA/Robinson v. Township High School District 113, 2022 IL App (2d) 210107-U .pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:41.497520","site_category":"FOIA Response Process","date_decided":"2022-01-19","site_url":"/cases/2022%20IL%20App%20(2d)%20210107-U/","text_url":"/case-text/2022%20IL%20App%20(2d)%20210107-U.txt","full_text":" 2022 IL App (2d) 210107-U\n No. 2-21-0107\n Order filed January 19, 2022\n\n NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent\n except in the limited circumstances allowed under Rule 23(e)(l).\n______________________________________________________________________________\n\n IN THE\n\n APPELLATE COURT OF ILLINOIS\n\n SECOND DISTRICT\n______________________________________________________________________________\n\nMARY ROBINSON, ) Appeal from the Circuit Court\n ) of Lake County.\n Plaintiff-Appellant, )\n )\nv. ) No. 19-CH-1318\n )\nTOWNSHIP HIGH SCHOOL DISTRICT 113, ) Honorable\n ) Stacey L. Seneczko,\n Defendant-Appellee. ) Judge, Presiding.\n______________________________________________________________________________\n\n JUSTICE ZENOFF delivered the judgment of the court.\n Justices Schostok and Birkett concurred in the judgment.\n\n ORDER\n\n¶1 Held: Because the record on appeal did not include the emails that the trial court reviewed\n in camera, the appellate court presumed that the order entered by the trial court\n denying the plaintiff access to those emails was in conformity with law and had a\n sufficient factual basis.\n\n¶2 Plaintiff, Mary Robinson, filed this action against defendant, Township High School\n\nDistrict 113 (the District), seeking disclosure of documents pursuant to the Freedom of Information\n\nAct (FOIA) (5 ILCS 140/1 et seq. (West 2018)). The trial court determined that certain emails\n\nwere exempt from disclosure, granting the District’s motion for summary judgment and denying\n\nRobinson’s cross-motion for summary judgment. Robinson appeals. The record on appeal does\n\f2022 IL App (2d) 210107-U\n\n\nnot contain the emails that the court reviewed in camera. We hold that the incomplete record\n\nprevents us from addressing the merits of the parties’ arguments. In accordance with Foutch v.\n\nO’Bryant, 99 Ill. 2d 389 (1984), we affirm the judgment based on the presumption that the order\n\nentered by the trial court was in conformity with law and had a sufficient factual basis.\n\n¶3 I. BACKGROUND\n\n¶4 Robinson sent multiple FOIA requests to the District. Only the following request is relevant\n\nto this appeal:\n\n “All records dated from September 1, 2015 to today’s date relating to communications\n\n between the District (including but not limited to current and former Board of Education\n\n members, superintendents, administration, Highland Park High School principals and\n\n assistant principals, attorneys retained by the District) and any child sex offender, or\n\n individual acting on behalf of a child sex offender, concerning access to District property\n\n and events.”\n\nIn reviewing Robinson’s request, the District determined that, of all the parents of students enrolled\n\nin the District, only one parent was a convicted child sex offender. The District also determined\n\nthat documents responsive to Robinson’s request included emails between that sex offender/parent\n\nand school officials.1 The District declined to produce these emails to Robinson. In its brief on\n\nappeal, the District indicates that the emails in dispute consist of “37 unique email strings” that\n\n\n\n\n 1\n On appeal, Robinson abandons her request for three emails that were part of an email\n\nstring contained in the documents Bates stamped W520-530. The District claimed that these three\n\nemails were nonresponsive to Robinson’s FOIA request, contained privileged legal advice, and\n\nwere “preliminary/predecisional records that were used to formulate District action.”\n\n\n\n -2-\n\f2022 IL App (2d) 210107-U\n\n\n“address specific students by name, contain information about student activities and events, a\n\nstudent’s ability to have her parents attend her school events, and even student medical\n\ninformation.”\n\n¶5 The District claimed that the emails were “school student records” within the meaning of\n\nthe Illinois School Student Records Act (105 ILCS 10/1 et seq. (West 2018)). See also 105 ILCS\n\n10/2(d) (West 2018) (defining “school student record,” in relevant portion, as “any writing or other\n\nrecorded information concerning a student and by which a student may be individually identified,\n\nmaintained by a school or at its direction or by an employee of a school, regardless of how or\n\nwhere the information is stored”). Because Robinson was not statutorily authorized to obtain such\n\nschool student records, the District asserted that the subject emails were exempt from disclosure\n\npursuant to both section 7(1)(a) of FOIA (5 ILCS 140/7(1)(a) (West 2018) (exempting\n\n“[i]nformation specifically prohibited from disclosure by federal or State law”)) and section 7.5(r)\n\nof FOIA (5 ILCS 140/7.5(r) (West 2018) (exempting “[i]nformation prohibited from being\n\ndisclosed by the Illinois School Student Records Act)).\n\n¶6 For similar reasons, the District claimed that the subject emails constituted protected\n\n“education records” under the Family Educational Rights and Privacy Act (FERPA). See 20 U.S.C.\n\n§ 1232g(a)(4)(A) (2016) (defining “education records,” in relevant portion, as “records, files,\n\ndocuments, and other materials which (i) contain information directly related to a student; and (ii)\n\nare maintained by an educational agency or institution or by a person acting for such agency or\n\ninstitution”). According to the District, because FERPA prohibited the disclosure of the emails,\n\nthe emails were exempt from disclosure pursuant to section 7(1)(a) of FOIA.\n\n¶7 Finally, the District claimed that the emails were exempt from disclosure pursuant to\n\nsection 7(1)(c) of FOIA (5 ILCS 140/7(1)(c) (West 2018)), which exempts “[p]ersonal information\n\n\n\n\n -3-\n\f2022 IL App (2d) 210107-U\n\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\n\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\n\nsubjects of the information.” The statute defines “unwarranted invasion of personal privacy” as\n\n“the disclosure of information that is highly personal or objectionable to a reasonable person and\n\nin which the subject’s right to privacy outweighs any legitimate public interest in obtaining the\n\ninformation.” 5 ILCS 140/7(1)(c) (West 2018). The statute indicates that “[t]he disclosure of\n\ninformation that bears on the public duties of public employees and officials shall not be\n\nconsidered an invasion of personal privacy.” 5 ILCS 140/7(1)(c) (West 2018).\n\n¶8 Robinson filed a complaint in the circuit court of Lake County, alleging that the subject\n\nemails were not exempt from disclosure. The parties filed cross-motions for summary judgment.\n\nFollowing an in-camera review of the emails, the court granted the District’s motion for summary\n\njudgment and denied Robinson’s motion. Robinson timely appealed.\n\n¶9 The record on appeal does not contain any reports of proceedings or bystander’s reports,\n\nand the court’s written order on the parties’ cross-motions for summary judgment does not specify\n\nthe basis or bases for the court’s ruling. The record also does not include the emails that the court\n\nreviewed in camera.\n\n¶ 10 II. ANALYSIS\n\n¶ 11 Robinson concedes that information in the subject emails identifying the sex\n\noffender/parent, any student, a student’s extracurricular activities, or a student’s medical\n\ninformation may be redacted. Robinson contends that, with those redactions, the emails (1) would\n\nnot constitute “school student records” under the Illinois School Student Records Act, (2) would\n\nnot be subject to FERPA, and (3) would not result in a “clearly unwarranted invasion of personal\n\n\n\n\n -4-\n\f2022 IL App (2d) 210107-U\n\n\nprivacy” if disclosed. As a preliminary matter, the District argues that the record is insufficient for\n\nappellate review, given the omission of the emails that the trial court reviewed in camera.\n\n¶ 12 We could reverse the judgment only if we determined that none of the exemptions claimed\n\nby the District apply. But without seeing the emails that the trial court reviewed in camera, we\n\nhave no way of evaluating the applicability of the exemptions. Accordingly, we hold that the record\n\nis insufficient to support Robinson’s claim of error.\n\n¶ 13 Robinson insists that the subject emails, upon being redacted along the lines that she\n\nproposes, would not “concern[ ] a student” so as to fall within the scope of the Illinois School\n\nStudent Records Act and would not “contain information directly related to a student” for purposes\n\nof FERPA. The District disagrees. We cannot evaluate the parties’ legal arguments in a factual\n\nvacuum. In the trial court, Robinson suggested the following guidelines for redacting the emails:\n\n “[I]f an email says ‘Mr. Jones wants to attend his daughter Kelly’s soccer match and the\n\n protocol we have decided on is for him check [sic] in with the soccer coach when he arrives\n\n and when he leaves,’ [the District] should produce ‘_____ wants to attend _____’s _____\n\n and the protocol we have decided on is for him to check in with the _____ coach when he\n\n arrives and when he leaves.”\n\nThe problem is that, even if we agreed that redactions consistent with Robinson’s hypothetical\n\nwould be appropriate, we have no idea whether the emails at issue contain content of this precise\n\nnature. Nor do we know whether there would be anything of substance left in the emails if the\n\nDistrict made the redactions that Robinson proposes.\n\n¶ 14 The same problem is evident with respect to the parties’ arguments about whether\n\ndisclosing redacted records would result in an “unwarranted invasion of personal privacy” for\n\npurposes of section 7(1)(c) of FOIA. Evaluating the parties’ arguments would require us to balance\n\n\n\n\n -5-\n\f2022 IL App (2d) 210107-U\n\n\nthe privacy interests at stake against “the public’s legitimate interest in disclosure.” State Journal-\n\nRegister v. University of Illinois Springfield, 2013 IL App (4th) 120881, ¶ 44. Such balancing\n\ninherently must occur “on a case-by-case basis” (Stern v. Wheaton-Warrenville Community Unit\n\nSchool District 200, 233 Ill. 2d 396, 407 (2009)), so there is no way that we could conduct a\n\nmeaningful analysis without knowing the exact contents of the emails.\n\n¶ 15 Robinson essentially wants a “masked” record of the emails, devoid of information that\n\nwould identify specific students. See Bowie v. Evanston Community Consolidated School District\n\nNo. 65, 128 Ill. 2d 373, 379 (1989) (“A masked record, which deletes individual identifying\n\ninformation, does not fall within the definition of a school student record, and is not prohibited\n\nfrom disclosure under the [Illinois School Student Records] Act.”). One of the District’s responses\n\nis that the subject emails cannot be masked. According to the District, there is only one family in\n\nthe District that meets the criteria of Robinson’s FOIA request, and some members of the\n\ncommunity already know the identity of that family. Although the record on appeal does not reflect\n\nthe basis or bases for the trial court’s ruling, it is entirely possible that the court made a factual\n\ndetermination upon reviewing the emails that student identities could not be masked through\n\nredaction. Without seeing the subject emails, we have no way of addressing the parties’ disputes,\n\nlet alone reviewing any findings that the court might have made.\n\n¶ 16 Nevertheless, in a footnote in her reply brief, Robinson asserts that there is no need for us\n\nto review the emails, as “there is no dispute about their contents.” A few pages later, though,\n\nRobinson accuses the District of mischaracterizing the emails. Moreover, in crafting her\n\narguments, Robinson makes assumptions about the emails (which she has not seen) that we have\n\nno way to verify. For example, Robinson asserts that “the focus of the records here is not any\n\nstudent, but a parent and the District 113 officials responsible for ensuring that any visits by such\n\n\n\n\n -6-\n\f2022 IL App (2d) 210107-U\n\n\nparent to District 113 property in the presence of minor students were properly managed and\n\nsupervised.” Elsewhere in her brief, Robinson maintains that the subject emails reference students\n\nonly incidentally. In her reply brief, Robinson says that a student merely “happens to be\n\nmentioned” in the emails. Without reviewing the emails, we are in no position to discern their\n\nfocus or whether they reference students only incidentally. Additionally, contrary to Robinson’s\n\nsuggestion, the record does not reflect whether all the emails concern a sex offender/parent who\n\nwas “in the presence of minor students.” Robinson requested communications regarding sex\n\noffenders’ “access to District property and events,” not just such access occurring in the presence\n\nof minor students.\n\n¶ 17 Robinson, as the appellant, “has the burden to present a sufficiently complete record of the\n\nproceedings at trial to support a claim of error.” Foutch, 99 Ill. 2d at 391. “[I]n the absence of such\n\na record on appeal, it will be presumed that the order entered by the trial court was in conformity\n\nwith law and had a sufficient factual basis.” Foutch, 99 Ill. 2d at 392. We must resolve any doubts\n\narising from an incomplete record against the appellant. Foutch, 99 Ill. 2d at 392; see also Bocock\n\nv. Will County Sheriff, 2018 IL App (3d) 170330, ¶¶ 42-43 (Foutch applied where an appellant\n\nargued that a policy manual was exempt from FOIA but where the manual that the trial court\n\nreviewed in camera was not included in the record on appeal). “Even where a party is not privy to\n\nmaterials reviewed in camera and found to be privileged from discovery, that party can request\n\nthe circuit court to submit those materials under seal for appellate review.” Cascade Builders Corp.\n\nv. Rugar, 2021 IL App (1st) 192410, ¶ 28.\n\n¶ 18 We hold that the record is insufficient to support Robinson’s claim of error. Consequently,\n\nin accordance with Foutch, we must presume that the court’s order was in conformity with law\n\nand had a sufficient factual basis.\n\n\n\n\n -7-\n\f2022 IL App (2d) 210107-U\n\n\n¶ 19 III. CONCLUSION\n\n¶ 20 For the reasons stated, we affirm the judgment of the circuit court of Lake County.\n\n¶ 21 Affirmed.\n\n\n\n\n -8-\n\f"} {"dedup_key":"2022 IL App (2d) 210704","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (2d) 210704","case_name":"River Breeze, LLC v. Granholm","court_level":"Appellate","appellate_district":"2nd","year":2022,"county":"Kane","appellate_docket":"2-21-0704","circuit_docket":"20-CH-376","published":1,"authoring_justice":"Schostok","statute":["FOIA"],"exemptions_cited":[],"public_body":"Aurora Downtown","requesting_party":"River Breeze, LLC","disposition":"remanded","relevance":"relevant","summary_source":"generated","summary":"The court held that the trial court erred in dismissing the plaintiff's FOIA claim at the pleading stage by prematurely determining that Aurora Downtown was not a 'subsidiary body' subject to FOIA. The appellate court vacated the dismissal and remanded the case for further development of the evidentiary record regarding the entity's status.","best_text_source":"Court Opinions - FOIA/River Breeze LLC v. Granholm 2022 IL App (2d) 210704.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:41.811007","site_category":"Public Body Definition","date_decided":"2022-12-01","site_url":"/cases/2022%20IL%20App%20(2d)%20210704/","text_url":"/case-text/2022%20IL%20App%20(2d)%20210704.txt","full_text":" Digitally signed by\n Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2024.01.03\n 13:04:37 -06'00'\n\n\n\n River Breeze, LLC v. Granholm, 2022 IL App (2d) 210704\n\n\n\nAppellate Court RIVER BREEZE, LLC, in Its Individual Capacity and Derivatively on\nCaption Behalf of Aurora Downtown, Plaintiff-Appellant, v. KIM\n GRANHOLM, GINA SALAMONE, and AURORA DOWNTOWN,\n Defendants-Appellees.\n\n\n\nDistrict & No. Second District\n No. 2-21-0704\n\n\n\nFiled December 1, 2022\n\n\n\nDecision Under Appeal from the Circuit Court of Kane County, No. 20-CH-376; the\nReview Hon. Kevin T. Busch, Judge, presiding.\n\n\n\nJudgment Vacated and remanded.\n\n\nCounsel on Colin W. Anderson, of Anderson & Uddin, P.C., of Aurora, for\nAppeal appellant.\n\n Elizabeth M. Bartolucci, of O’Hagan Meyer LLC, of Chicago, for\n appellees.\n\f Panel JUSTICE SCHOSTOK delivered the judgment of the court, with\n opinion.\n Presiding Justice Brennan and Justice Hudson concurred in the\n judgment and opinion.\n\n\n OPINION\n\n¶1 The plaintiff, River Breeze, LLC, brought suit both on its own behalf and on behalf of\n Aurora Downtown, a not-for-profit organization of which it is a member, against the\n defendants Kim Granholm and Gina Salamone, who are directors of Aurora Downtown, and\n against Aurora Downtown itself. Counts I and II of the amended complaint sought the removal\n of Granholm and Salamone from the board pursuant to the General Not for Profit Corporation\n Act of 1986 (Act) (805 ILCS 105/108.35 (West 2016)). Count III alleged that Aurora\n Downtown violated the Freedom of Information Act (FOIA) (5 ILCS 140/11 (West 2016)).\n The trial court dismissed the complaint, and the plaintiff appeals that dismissal. We vacate the\n trial court’s dismissal and remand for further proceedings.\n\n¶2 I. BACKGROUND\n¶3 The following facts are drawn largely from the amended complaint’s allegations, which\n we accept as true to consider whether the trial court correctly dismissed the complaint. See\n Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86 (1996).\n¶4 The City of Aurora created Special Service Area Number One (SSA No. 1), permitting it\n to levy taxes on property owners within that area to provide for the economic benefit of the\n area, a business district in Aurora. Aurora Downtown is a not-for-profit corporation organized\n under the Act. The complaint alleges that “Aurora Downtown was created pursuant to the SSA\n No. 1 and, through its elected Board of Directors, *** is charged with utilizing the SSA No. 1\n tax revenue in order to advise the City of Aurora” on combatting community deterioration,\n improving and redeveloping SSA No. 1, and aiding businesses within SSA No. 1. The\n complaint further alleges that “SSA No. 1 specifically identifies Aurora Downtown as an\n agency of the City of Aurora,” that Aurora Downtown has openly acknowledged that it serves\n as an advisory body to the city, and that Aurora Downtown derives all of its powers from the\n city and must seek the city’s approval for its projects and actions. Aurora Downtown has an\n appointed FOIA officer to respond to FOIA requests and has previously responded to such\n requests. The plaintiff is a limited liability company that owns three parcels within SSA No. 1.\n As a property owner of such parcels, the plaintiff is required to pay special taxes and is a\n member of Aurora Downtown.\n¶5 During the relevant time, Granholm served as a director on the board of Aurora Downtown\n and as the board chair. Salamone was another director. The organization’s by-laws required it\n to hold an annual meeting and choose directors in December. Although some directors were\n required to be drawn from designated organizations (e.g., the public library, the convention,\n and visitors’ bureau), members could nominate and vote upon the other directors. The board\n chair was charged with preparing ballots for the election and making them available to\n members before the annual meeting. Members were required to return their completed ballots\n\n\n -2-\n\f to the chair five days before the annual meeting. Under section 5.8 of the by-laws, the chair\n could appoint one or more inspectors to\n “ascertain and report the number of votes represented at the meeting, based on their\n determination of the validity and effect of proxies; count all votes and report the results;\n and do such other acts as are proper to conduct the election and voting with impartiality\n and fairness to all the Members.”\n The report of the votes and election results was required to be in writing and signed either by\n the inspector or, if there was more than one, by a majority of them.\n¶6 The plaintiff alleged that, in preparation for the 2017 annual meeting, Granholm prepared\n the ballots and distributed them with the instruction that they must be returned by 5 p.m. on\n December 1, 2017. Granholm then began counting the ballots in the presence of Salamone and\n the manager of Aurora Downtown. Granholm had not formally appointed the latter two as\n inspectors. The plaintiff alleged that all three “shared a common hostility towards certain\n Members” and “intended to ‘block’ those Members’ nominations [sic] for Director.” Thus, the\n plaintiff alleged, the presence of these hostile noninspectors was improper and cast doubt on\n the integrity of the election. Granholm later announced the outcome of the election. No\n certification of the votes was made.\n¶7 On January 31, 2018, Daniel Hites, the sole managing member of the plaintiff, submitted\n a FOIA request to Aurora Downtown, seeking—among other things—copies of all nominating\n petitions, the ballots (redacted as to all information except the actual vote), the voter signature\n and parcel number section of each ballot (redacted as to the actual vote), and all e-mails, letters,\n documents, and minutes relating to the 2017 election. In response, Granholm stated that 41\n ballots were counted and 2 rejected and that 35 ballots were unavailable for inspection.\n Granholm also stated that the ballots were counted by unnamed “appointed inspectors,”\n although she did not produce any written report of such inspectors. Granholm included with\n her response an altered section of the by-laws that “redacted key portions.” The plaintiff\n alleged that she did so with the intent to deceive and to induce the plaintiff to rely on her false\n representations.\n¶8 The plaintiff submitted additional FOIA requests, and Granholm responded to the second\n one. No response was made to the third request. Salamone, signing herself as Aurora\n Downtown’s FOIA officer, responded to the fourth and fifth requests.\n¶9 The plaintiff alleged that the responses to the FOIA requests “revealed additional\n irregularities in the 2017 election process.” The complaint alleged that, on information and\n belief, Granholm accepted and counted invalid ballots, accepted and counted ballots after the\n December 1, 2017, deadline, allowed certain members to vote twice, and (either herself or with\n others) altered or forged nine ballots. The complaint also alleged that Salamone participated in\n some or all of Granholm’s misconduct. This misconduct constituted a breach of Granholm’s\n and Salamone’s fiduciary duty as directors and was “detrimental to Aurora Downtown because\n it *** damaged the fairness, impartiality, and integrity of Aurora Downtown’s elections” as\n well as public confidence in the city and its agencies. Further, on information and belief, this\n misconduct had jeopardized Aurora Downtown’s financing and contract with the city.\n¶ 10 Citing section 108.35(d) of the Act, count I sought the removal of Granholm from the\n board, and count II sought Salamone’s removal. Section 108.35(d) provides that a circuit court\n may remove directors of not-for-profit corporations\n\n\n -3-\n\f “in a proceeding commenced either by the corporation or by members entitled to vote\n holding at least 10 percent of the outstanding votes of any class if the court finds (1) the\n director is engaged in fraudulent or dishonest conduct or has grossly abused his or her\n position to the detriment of the corporation, and (2) removal is in the best interest of\n the corporation.” 805 ILCS 105/108.35(d) (West 2016).\n Section 108.35(d) further provides that, “[i]f such a proceeding is commenced by a member\n entitled to vote, such member shall make the corporation a party defendant.” Id.\n¶ 11 Count III asserted that Aurora Downtown’s FOIA responses were incomplete and, in some\n instances, falsified, which violated FOIA and demonstrated bad faith. The plaintiff sought the\n assessment of a statutory civil penalty for this bad faith and to recover its attorney fees and\n costs.\n¶ 12 The defendants filed a combined motion to dismiss the amended complaint pursuant to\n section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2020)). The\n motion argued that, as to counts I and II, the complaint did not state a claim because the\n allegations of fraudulent conduct by Granholm and Salamone were insufficiently pled and the\n complaint did not adequately plead any actual detriment to Aurora Downtown arising from\n their conduct. As to count III, the motion contended that Aurora Downtown could not be\n considered a “public body” required to respond to FOIA requests because it was an\n “independent” body organized as a not-for-profit corporation under the Act. As relevant here,\n the motion also argued that the plaintiff was required to identify the documents it believed the\n defendants were wrongfully withholding.\n¶ 13 The plaintiff responded that, given Granholm’s and Salamone’s fiduciary duties toward\n Aurora Downtown and its members, it had adequately pled grounds for their removal under\n the Act. It also argued that Aurora Downtown met the legal test to determine whether an\n organization is considered a subsidiary “public body” under the Act and disputed that FOIA\n required the complaint to identify the documents that the plaintiff believed still had not been\n produced. In their reply, the defendants repeated their earlier arguments and added a new\n argument—that counts I and II were moot because they alleged wrongdoing only in connection\n with the 2017 election, but there were three annual board elections since 2017 when Granholm\n and Salamone were reelected.\n¶ 14 The trial court issued its ruling on November 2, 2021, after hearing oral argument. No\n transcript of the hearing is included in the record on appeal, but the order entered that day\n contains some of the trial court’s reasoning. Rather than ruling on the arguments raised and\n briefed by the parties, the trial court dismissed counts I and II on the basis that the plaintiff\n lacked standing to bring those counts because section 108.35 did not permit the plaintiff to\n bring a derivative claim on behalf of the members of Aurora Downtown seeking to remove\n Granholm and Salamone and the plaintiff had failed to plead that it held at least 10% of the\n outstanding votes of any class, “as required by” section 108.35. Although the trial court\n purported to dismiss counts I and II without prejudice, the order made clear that the trial court\n would again dismiss those counts unless the plaintiff could plead that it held a voting interest\n equal to 10% of the outstanding votes—a fact that the plaintiff admitted it could not plead. As\n to count III, the trial court dismissed it with prejudice, finding that Aurora Downtown was not\n a “subsidiary body” of the City of Aurora and thus was not subject to FOIA. This appeal\n followed.\n\n\n -4-\n\f¶ 15 II. ANALYSIS\n¶ 16 On appeal, the plaintiff argues that the trial court erred in dismissing counts I and II because\n the Act does not bar bringing a derivative suit to remove a director and those counts were\n sufficiently pled. It also contends that Aurora Downtown is, in fact, a “subsidiary body” subject\n to FOIA. Before addressing these arguments, we pause to consider our own jurisdiction to hear\n this appeal.\n\n¶ 17 A. Jurisdiction to Review the Dismissal of Counts I and II\n¶ 18 Although none of the parties questions our jurisdiction over the issues raised in this appeal,\n a reviewing court has a duty to consider sua sponte whether it has jurisdiction and to dismiss\n an appeal (or a portion of an appeal) if it lacks jurisdiction. Lebron v. Gottlieb Memorial\n Hospital, 237 Ill. 2d 217, 251-52 (2010). Here, the trial court’s order purported to dismiss\n counts I and II “without prejudice,” allowing the plaintiff 28 days to replead those counts. A\n dismissal without prejudice generally is not a reviewable final order but rather is an interim\n order that may become final if the plaintiff fails to file an amended pleading or if the issue is\n finally resolved in some other manner. See In re V.S., 2022 IL App (2d) 210667, ¶ 16. As the\n plaintiff elected to stand on its complaint and appeal rather than replead counts I and II, the\n dismissal became final, and we have jurisdiction to review it. 1 Id.\n¶ 19 Although the defendants do not dispute our jurisdiction to hear the appeal from the\n dismissal of counts I and II, they contend that, because the plaintiff lacked standing under the\n Act to seek their removal from the board, the trial court itself lacked the power to hear those\n claims at all. This argument borders on the frivolous, as it is based on the concept of limited\n statutory jurisdiction, which has been defunct for 20 years. As we noted in Nationstar\n Mortgage, LLC v. Canale, 2014 IL App (2d) 130676, ¶ 12, the supreme court rejected this\n concept in Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (2002).\n The supreme court explained that, although this view of limited statutory jurisdiction was\n correct under the old constitution of 1870, “under our present constitution, ‘[w]ith the\n exception of the circuit court’s power to review administrative action, which is conferred by\n statute, a circuit court’s subject matter jurisdiction is conferred entirely by our state\n constitution.’ ” Canale, 2014 IL App (2d) 130676, ¶ 12 (quoting Belleville Toyota, 199 Ill. 2d\n at 334). Because a circuit court’s jurisdiction now extends to all “justiciable matters” (Ill.\n Const. 1970, art. VI, § 9), a complaint need not demonstrate perfect compliance with all\n statutory prerequisites; it need only present a justiciable matter. Canale, 2014 IL App (2d)\n 130676, ¶¶ 12-15. This justiciability requirement is met so long as “the alleged claim falls\n within the general class of cases that the court has the inherent power to hear and determine.”\n In re Luis R., 239 Ill. 2d 295, 301 (2010).\n¶ 20 Here, there is no dispute that the complaint sought the removal of directors under the Act\n or that the trial court had the power to consider and resolve such claims. (The defendants argue\n\n 1\n We note that jurisdiction would also exist because the trial court’s dismissal of counts I and II is\n more properly categorized as a dismissal based on an affirmative defense under section 2-619 of the\n Code (735 ILCS 5/2-619 (West 2020)), not a dismissal for failure to state a claim under section 2-615\n of the Code (id. § 2-615). The trial court dismissed counts I and II on the basis that the plaintiff lacked\n standing to bring them. Lack of standing to bring an action is an affirmative defense (Lebron, 237 Ill.\n 2d at 252), and thus, a plaintiff generally need not plead that it has standing.\n\n -5-\n\f only that the plaintiff was not a proper party to bring such claims.) Thus, the complaint raised\n a justiciable matter, and the trial court had jurisdiction over counts I and II. See Canale, 2014\n IL App (2d) 130676, ¶ 18 (foreclosure complaint raised a justiciable matter despite failing to\n allege the plaintiff’s interest in the mortgage as required by the foreclosure statute). We\n therefore reject the defendants’ argument that the plaintiff’s purported lack of standing under\n the Act affected the trial court’s jurisdiction and turn to the substance of that standing issue.\n\n¶ 21 B. Dismissal of Counts I and II—Standing Under the Act\n¶ 22 When we review the dismissal of claims, we are guided by certain standards. Although the\n defendants’ motion to dismiss raised arguments under both section 2-615 (attacking the\n sufficiency of the complaint) and section 2-619 of the Code (raising certain affirmative\n defenses) (735 ILCS 5/2-615, 2-619 (West 2020)), the trial court based its dismissal solely on\n the latter arguments, finding that affirmative defenses barred the plaintiff’s claims. Further, on\n appeal, the defendants do not argue that the allegations of the complaint were insufficient to\n state a claim. Thus, we apply the standards for evaluating a dismissal under section 2-619. A\n section 2-619 motion to dismiss assumes the allegations of the complaint are true but asserts\n an affirmative defense or other matter that would defeat the plaintiff’s claim as a matter of law.\n Id. § 2-619; Nielsen-Massey Vanillas, Inc. v. City of Waukegan, 276 Ill. App. 3d 146, 151\n (1995). Such a motion admits well-pleaded facts but does not admit conclusions of law and\n conclusory factual allegations unsupported by allegations of specific facts alleged in the\n complaint. Better Government Ass’n v. Illinois High School Ass’n, 2017 IL 121124, ¶ 21\n (IHSA). We review the dismissal of a complaint under section 2-619 de novo. Wallace v.\n Smyth, 203 Ill. 2d 441, 447 (2002).\n¶ 23 The issue of whether the plaintiff had standing under the Act to seek the removal of\n Granholm and Salamone as directors of Aurora Downtown requires us to interpret that statute.\n In construing a statute, our task is to “ascertain and give effect to the legislature’s intent.” Lieb\n v. Judges’ Retirement System, 314 Ill. App. 3d 87, 92 (2000). The best indicator of the\n legislature’s intent is the plain language of the statute. Lee v. John Deere Insurance Co., 208\n Ill. 2d 38, 43 (2003). “When the statute’s language is clear, it will be given effect without resort\n to other aids of statutory construction.” Id. “One of the fundamental principles of statutory\n construction is to view all provisions of an enactment as a whole,” and thus “words and phrases\n must be interpreted in light of other relevant provisions of the statute.” J.S.A. v. M.H., 224 Ill.\n 2d 182, 197 (2007). “A court may also consider the reason for the statute, the problems it seeks\n to remedy, the purposes to be achieved, and the consequences of interpreting the statute one\n way or another.” Sperl v. Henry, 2018 IL 123132, ¶ 23.\n¶ 24 Under section 108.35(d) of the Act, an action to remove the director of a not-for-profit\n corporation may be brought “either by the corporation or by members entitled to vote holding\n at least 10 percent of the outstanding votes of any class.” 805 ILCS 105/108.35(d) (West 2016).\n The plaintiff concedes that it does not hold at least 10% of the members’ votes, so it may only\n proceed if it is suing “by the corporation.” The plaintiff posits that, by bringing a derivative\n suit on behalf of all the members of Aurora Downtown, it has asserted a claim “by” the\n corporation. This position is supported by the common understanding of the term “by,” as one\n of the definitions of that term is “on behalf of.” Merriam-Webster Online Dictionary, https://\n www.merriam-webster.com/dictionary/by (last visited Nov. 18, 2022) [https://perma.cc/\n QA5M-VVUJ].\n\n -6-\n\f¶ 25 The defendants argue that a derivative action is not an action “by the corporation.”\n However, the only authority they cite to support that argument is Goldberg v. Astor Plaza\n Condominium Ass’n, 2012 IL App (1st) 110620, ¶ 53, which does not say anything of the kind.\n Rather, Goldberg notes that a derivative suit is “ ‘one of the remedies which equity designed\n for those situations where the management through fraud, neglect of duty or other cause\n declines to take the proper and necessary steps to assert the rights which the corporation has’ ”\n (id. ¶ 52 (quoting Meyer v. Fleming, 327 U.S. 161, 167 (1946))) and that such a suit is “based\n upon the corporate right that was allegedly violated” (id. ¶ 53). Goldberg supports the\n conclusion that, as derivative suits are brought on behalf of the corporation to vindicate its\n rights, they are effectively suits by the corporation.\n¶ 26 The plaintiff’s position is also buttressed by the fact that a different provision of the Act\n expressly permits the voting members of not-for-profit corporations to bring derivative suits\n just as they were able to do at common law, stating that “[n]othing in this Act shall be construed\n to affect any pre-existing common law right of a voting member to bring an action *** in the\n right of such corporation.” 805 ILCS 105/107.80 (West 2016). The defendants argue that, by\n including language in section 108.35 that members can only seek the removal of directors if\n they hold more than 10% of the votes, the legislature meant to preclude members holding fewer\n votes from bringing derivative suits to remove directors. Citing the maxim that when there is\n a conflict between statutory provisions, the more specific provision should be applied, the\n defendants argue that, although section 107.80 protects members’ general right to bring\n derivative suits, section 108.35 is a more specific provision that restricts that right—or at least\n restricts the remedies available in a derivative suit, which should not include the removal of\n directors.\n¶ 27 This is a misreading of section 108.35. The legislature did not restrict the ability to sue for\n removal of directors to only those members holding more than 10% of the votes; it also\n permitted such actions to be brought “by the corporation”—a term that, as we have discussed,\n includes derivative actions. Thus, the plain language of the statute permits the filing of such\n actions either as derivative suits or by members on their own behalf if the plaintiff members\n hold more than 10% of the votes. We note that the Business Corporation Act of 1983 has a\n similar provision stating that suits to remove corporate directors can be brought either by the\n corporation or by shareholders of a corporation holding at least 10% of the outstanding shares\n of any class. 805 ILCS 5/8.35(b) (West 2016). While derivative suits by shareholders/members\n seeking to remove directors are rare, they exist. See, e.g., Weis v. E. & G. Weis Farms, Inc.,\n 2019 IL App (5th) 180503-U, ¶ 12 (minority shareholder of for-profit corporation filed action\n seeking removal of directors, among other relief).\n¶ 28 The plaintiff here could not bring suit to remove Granholm and Salamone on its own behalf\n because it does not hold 10% of the votes. But nothing in the Act precluded it from filing a\n derivative action to remove them. Accordingly, the trial court erred in concluding otherwise. 2\n\n\n\n 2\n We also note that the trial court proceeded unwisely by basing its decision on an issue that, so far\n as we can tell, it raised sua sponte at the hearing. Neither party had previously raised or briefed the\n issue of whether the Act permits derivative suits to remove directors. Such excursions into matters not\n raised or briefed by the parties run the risk of transforming a court from an arbiter to an advocate (see\n People v. Rodriguez, 336 Ill. App. 3d 1, 14 (2002)) and may violate the parties’ due process rights to\n\n -7-\n\f¶ 29 C. Dismissal of Counts I and II—Mootness\n¶ 30 The defendants next argue that, even if the trial court’s determination that the Act did not\n permit derivative suits was erroneous, we should uphold the trial court’s dismissal of counts I\n and II because those claims are moot. They contend that, because there were three annual board\n elections since 2017 as to which the plaintiff alleged no wrongdoing, and Granholm and\n Salamone were reelected to the board each time, the claims seeking removal of those directors\n are moot. The defendants fail to show that this is so, however.\n¶ 31 “An appeal is moot if ‘no actual controversy exists or if events have occurred that make it\n impossible for the reviewing court to grant the complaining party effectual relief.’ ” In re\n Marriage of Eckersall, 2015 IL 117922, ¶ 9 (quoting In re Marriage of Peters-Farrell, 216 Ill.\n 2d 287, 291 (2005)). But the defendants have not cited a single legal authority suggesting that\n the passage of time, or the fact of reelection in and of itself, makes it impossible for the court\n to order the removal of directors pursuant to section 108.35. This lack of reasoned argument\n or pertinent legal authority would justify our finding their argument forfeited. Ill. S. Ct. R.\n 341(h)(7) (eff. Jan. 1, 2016) (where a party does not offer any argument or meaningful\n authority in support of that argument, the argument is forfeited); People ex rel. Illinois\n Department of Labor v. E.R.H. Enterprises, Inc., 2013 IL 115106, ¶ 56 (same). Even if it were\n not forfeited, though, their argument has no merit.\n¶ 32 Section 108.35 of the Act provides that a court may order the removal of a board director\n if the trial court finds that “(1) the director is engaged in fraudulent or dishonest conduct or has\n grossly abused his or her position to the detriment of the corporation, and (2) removal is in the\n best interest of the corporation.” 805 ILCS 105/108.35(d) (West 2016). Nothing in this section\n restricts the court’s power to grant these remedies if the directors were reelected after their\n alleged misconduct. Thus, we may not read such a limitation into the Act. J.S.A., 224 Ill. 2d at\n 197 (“[w]e will not depart from the plain language of a statute by reading into it exceptions,\n limitations or conditions that conflict with the express legislative intent”). Nor does a common-\n sense reading of the statute require such a limitation. We can easily imagine that directors\n could take actions that were such a betrayal of their fiduciary duties toward the corporation\n that their continuing fitness to serve as directors could be justifiably questioned, despite their\n reelection by members who may or may not have known of that misconduct.\n¶ 33 For all of these reasons, we reject the defendants’ arguments regarding counts I and II. We\n vacate the dismissal of counts I and II and remand for further proceedings.\n\n¶ 34 D. Dismissal of Count III—“Subsidiary Body”\n¶ 35 The trial court dismissed count III—the plaintiff’s claim that the defendants violated\n FOIA—on the basis that Aurora Downtown was not a “subsidiary body” of a public body and\n thus was not within the scope of FOIA. But the trial court lacked sufficient evidence at this\n stage for this factual finding, and its determination was premature. Accordingly, its dismissal\n of count III cannot stand.\n¶ 36 The legislature enacted FOIA to ensure that “[e]ach public body shall make available to\n any person for inspection or copying all public records.” 5 ILCS 140/3(a) (West 2016). As\n defined in FOIA, “public body” includes the following categories relevant here: “all\n\n notice and an opportunity to be heard on the issues forming the basis for decision (see Oak Grove\n Jubilee Center, Inc. v. City of Genoa, 347 Ill. App. 3d 973, 978-79 (2004)).\n\n -8-\n\f legislative, executive, administrative, or advisory bodies of *** cities *** and all other\n municipal corporations, boards, bureaus, committees, or commissions of this State, [and] any\n subsidiary bodies of any of the foregoing including but not limited to committees and\n subcommittees thereof.” Id. § 2(a). The plaintiff does not contend that Aurora Downtown falls\n within one of the enumerated bodies of government, instead asserting that it is a “subsidiary\n body” of the City of Aurora.\n¶ 37 A “subsidiary body” may be either public or private. Our supreme court has adopted the\n following factors for determining whether a private entity is a “subsidiary body”: “(1) the\n extent to which the entity has a legal existence independent of government resolution, (2) the\n degree of government control exerted over the entity, (3) the extent to which the entity is\n publicly funded, and (4) the nature of the functions performed by the entity.” IHSA, 2017 IL\n 121124, ¶ 26. The supreme court continued, “We emphasize that no single factor is\n determinative or conclusive, but as the definition indicates, the key distinguishing factors are\n government creation and control.” Id.\n¶ 38 The determination of whether a particular organization is a subsidiary body turns on the\n evidence presented with respect to each factor. See id. ¶ 34 (“whether a private entity could be\n deemed a subsidiary body under the FOIA requires a case-by-case consideration” of the four\n factors). Such a factual inquiry generally should not be resolved at the pleading stage, where\n the facts alleged in the complaint and any affirmative defenses have not yet been proven. This\n appeal is an example of the problems created by proceeding in the absence of sufficient\n evidence.\n¶ 39 In its complaint, the plaintiff alleges that “Aurora Downtown was created pursuant to the\n SSA No. 1,” a special taxing district created by Aurora city ordinance, and “is charged with\n utilizing the SSA No. 1 tax revenue.” The complaint further alleges that\n “SSA No. 1 specifically identifies Aurora Downtown as an agency of the City of\n Aurora, and at all relevant times Aurora Downtown openly acknowledged it operate[s]\n as an advisory body to the City of Aurora with the purpose of implementing the projects\n of the City as laid out in the SSA No. 1.”\n Finally, the complaint alleges that “Aurora Downtown derives all of its powers from the City\n of Aurora, must seek the City’s approval for its projects and endeavors and is ultimately\n controlled by the City.” If proven, these allegations would establish facts supporting the\n conclusion that Aurora Downtown is a subsidiary body subject to FOIA. 3\n¶ 40 The defendants object that the plaintiff “has presented no evidence or ordinance to\n demonstrate” that its allegations are true. This misconstrues the plaintiff’s burden at this point,\n however. Discovery has not yet occurred in this case. The trial court dismissed the FOIA claim\n pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2020)). When considering a\n motion to dismiss brought under that section, we must assume that well-pleaded allegations of\n fact in the complaint are true, although we do not make the same assumption about conclusions\n of law or conclusory factual allegations unsupported by allegations of specific facts alleged in\n the complaint. IHSA, 2017 IL 121124, ¶ 21. The complaint here alleges specific facts, however,\n and thus—at this pleading stage of the proceedings—we must take them as true, even if the\n plaintiff has not presented evidence to back them up. In line with the reality that determining\n whether a private body is a subsidiary body under FOIA is fact-dependent, the relevant case\n\n 3\n Of course, we are not making such a determination here.\n\n -9-\n\f law reveals that far more evidence was considered in those cases than was presented here. See,\n e.g., id. ¶ 11 (parties presented not only organization’s governing documents but also detailed\n affidavit testimony of its executive director and pertinent previous legal opinions concerning\n the nature of the organization); Rushton v. Department of Corrections, 2019 IL 124552\n (decided on summary judgment rather than at the pleading stage); Chicago Tribune v. College\n of Du Page, 2017 IL App (2d) 160274 (same); Board of Regents of the Regency University\n System v. Reynard, 292 Ill. App. 3d 968 (1997) (appeal following bench trial); Hopf v. Topcorp,\n Inc., 256 Ill. App. 3d 887 (1993) (appeal of summary judgment); Rockford Newspapers, Inc.\n v. Northern Illinois Council on Alcoholism & Drug Dependence, 64 Ill. App. 3d 94 (1978)\n (appeal of summary judgment). Cf. Better Government Ass’n v. Metropolitan Pier &\n Exposition Authority, No. 126790 (Ill. Mar. 24, 2021) (supervisory order) (vacating the\n appellate court decision and directing the appellate court to remand the case to the circuit court\n “to develop the evidentiary record necessary for a fact specific inquiry” relating to coverage of\n a document request under FOIA). The trial court erred in attempting to determine whether\n Aurora Downtown qualifies as a subsidiary body at the pleading stage and on the sparse record\n presented.\n¶ 41 The defendants argue that Aurora Downtown has an independent legal identity, as it is a\n duly organized private not-for-profit corporation. But this fact alone cannot establish that it is\n not a subsidiary body under FOIA. See, e.g., College of Du Page, 2017 IL App (2d) 160274,\n ¶ 50 (private not-for-profit corporation was performing a governmental function on behalf of\n a public body and thus was subject to FOIA). As this fact is not dispositive, it cannot justify\n the trial court’s entry of judgment on count III. The defendants also assert that the plaintiff was\n required to identify the specific documents to which it was denied access, but they fail to cite\n any pertinent legal authority and thus have forfeited this argument. We vacate the dismissal of\n count III and remand for further proceedings.\n\n¶ 42 III. CONCLUSION\n¶ 43 The judgment of the circuit court of Kane County is vacated, and the cause is remanded\n for further proceedings consistent with this opinion.\n\n¶ 44 Vacated and remanded.\n\n\n\n\n - 10 -\n\f"} {"dedup_key":"2022 IL App (3d) 210270-U","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (3d) 210270-U","case_name":"John Kraft and Edgar County Watchdogs, Inc. v. City of Kankakee","court_level":"Appellate","appellate_district":"3rd","year":2022,"county":"Kankakee","appellate_docket":"3-21-0270","circuit_docket":"19-CH-146","published":0,"authoring_justice":"Lytton","statute":["FOIA"],"exemptions_cited":[],"public_body":"City of Kankakee","requesting_party":"John Kraft and Edgar County Watchdogs, Inc.","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court affirmed the dismissal of the plaintiffs' FOIA complaint, finding the matter moot because the plaintiffs eventually received the requested documents. The court further held that the plaintiffs were not entitled to attorney fees or civil penalties because the City's initial denial was reasonable and did not violate FOIA.","best_text_source":"Court Opinions - FOIA/Kraft v. City of Kankakee, 2022 IL App (3d) 210270-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:42.273279","site_category":"FOIA Response Process","date_decided":"2022-06-07","site_url":"/cases/2022%20IL%20App%20(3d)%20210270-U/","text_url":"/case-text/2022%20IL%20App%20(3d)%20210270-U.txt","full_text":" NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the\n limited circumstances allowed under Rule 23(e)(1).\n\n 2022 IL App (3d) 210270-U\n\n Order filed June 7, 2022\n ____________________________________________________________________________\n\n IN THE\n\n APPELLATE COURT OF ILLINOIS\n\n THIRD DISTRICT\n\n 2022\n\n JOHN KRAFT and EDGAR COUNTY ) Appeal from the Circuit Court\n WATCHDOGS, INC., ) of the 21st Judicial Circuit,\n ) Kankakee County, Illinois.\n Plaintiffs-Appellants, )\n ) Appeal No. 3-21-0270\n v. ) Circuit No. 19-CH-146\n )\n CITY OF KANKAKEE, ) The Honorable\n ) Adrienne W. Albrecht,\n Defendant-Appellee. ) Judge, Presiding.\n ____________________________________________________________________________\n\n JUSTICE LYTTON delivered the judgment of the court.\n Justices Holdridge and McDade concurred in the judgment.\n ____________________________________________________________________________\n\n ORDER\n\n¶1 Held: (1) Trial court properly dismissed plaintiffs’ FOIA complaint as moot where\n plaintiffs received all documents requested; (2) plaintiffs were not entitled to\n attorney fees and costs where they did not prevail in FOIA action; and (3) civil\n penalties were not appropriate where City’s denial of request did not violate FOIA.\n\n¶2 Plaintiff John Kraft, on behalf of Edgar County Watchdogs, Inc., submitted a request for\n\n documents, pursuant to the Illinois Freedom of Information Act (FOIA), to defendant City of\n\n Kankakee, seeking “all sales tax sharing agreements/settlements” approved by the City Council.\n\n The City initially denied the request, stating that there were no such documents in its possession.\n\f Plaintiffs then filed a complaint against the City alleging that it violated FOIA. Before plaintiffs\n\n served the City with their complaint, the City provided plaintiffs with two signed agreements\n\n responsive to their FOIA request. A few months later, the City provided plaintiffs with three more\n\n documents responsive to their FOIA request. The City then filed a motion to dismiss plaintiffs’\n\n FOIA complaint, which the trial court granted. Plaintiffs appeal, arguing that the trial court erred\n\n in (1) dismissing their complaint, and (2) not ordering the City to pay attorney fees and civil\n\n penalties. We affirm.\n\n¶3 BACKGROUND\n\n¶4 On July 11, 2019, Kraft, on behalf of Edgar County Watchdogs, Inc., submitted a FOIA\n\n request to defendant City of Kankakee, seeking, in part: “Copy of all sales tax sharing\n\n agreements/settlements approved at a city council within the past 30 days.” On July 24, 2019, the\n\n City responded to the request by denying it and stating: “The City is not in possession of\n\n agreements that have been entered into by the City and any other party. *** The City has not\n\n entered into, nor it is in possession of, settlement agreements because all parties have not signed\n\n and executed such agreements.”\n\n¶5 On August 1, 2019, plaintiffs filed a complaint in circuit court alleging that the City\n\n “willfully and intentionally violated FOIA” by improperly responding to its July 11, 2019 FOIA\n\n request. Plaintiffs requested an order requiring the City to produce the requested records, reimburse\n\n them for their attorney fees and costs, and pay civil penalties.\n\n¶6 On September 11, 2019, the City received two signed sales tax sharing settlement\n\n agreements. The following day, the City sent plaintiffs a supplemental FOIA response, providing\n\n plaintiffs with the two signed agreements. On October 22, 2019, plaintiffs served their FOIA\n\n complaint on the City. On January 24, 2020, counsel for the City entered an appearance. On\n\n\n\n 2\n\f January 28, 2020, the City provided plaintiffs another supplemental FOIA response, tendering\n\n three more signed agreements to plaintiffs. With that response, plaintiffs were in receipt of all\n\n documents they sought in their July 11, 2019 FOIA request.\n\n¶7 On April 8, 2020, the City filed a motion to dismiss plaintiffs’ complaint, pursuant to\n\n sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West\n\n 2020)), asserting (1) plaintiffs’ FOIA claim was moot because the City had provided plaintiffs\n\n with all the documents they sought in their FOIA request; (2) the City properly denied plaintiffs’\n\n request when it was filed because the agreements were not yet executed; and (3) the City did not\n\n willfully and intentionally violate FOIA or act in bad faith in initially denying plaintiffs’ FOIA\n\n request.\n\n¶8 On February 23, 2021, the trial court granted the City’s motion to dismiss, stating:\n\n “This court finds that concerning the settlement documents requested by Plaintiff,\n\n no such settlement agreements came into existence until they were executed by all\n\n parties, and the City did not violate the Freedom of Information Act by producing\n\n the settlement agreements shortly following the receipt of the executed copies of\n\n the agreements.”\n\n Plaintiffs filed a motion to reconsider, which the trial court denied.\n\n¶9 ANALYSIS\n\n¶ 10 The City argues that plaintiffs’ FOIA complaint became moot when plaintiffs received all\n\n the documents they requested. Plaintiffs respond that (1) their FOIA complaint was not moot, and\n\n (2) the court should have ordered the City to pay attorney fees and civil penalties for violating\n\n FOIA.\n\n\n\n\n 3\n\f¶ 11 A motion to dismiss under section 2-615 of the Code (735 ILCS 5/2-615 (West 2020))\n\n challenges the legal sufficiency of the complaint and is proper where the complaint fails to state a\n\n claim for which relief may be granted. Turner v. Joliet Police Department, 2019 IL App (3d)\n\n 170819, ¶ 9. A section 2-619 (735 ILCS 5/2-619 (West 2020)) motion to dismiss admits the legal\n\n sufficiency of the complaint but asserts an affirmative matter that avoids or defeats the\n\n claim. Turner, 2019 IL App (3d) 170819, ¶ 9. We review dismissals under both sections de\n\n novo. Id.\n\n¶ 12 Pursuant to FOIA, all records in the custody of a public body are presumed open to\n\n inspection or copying. Id. ¶ 10; 5 ILCS 140/1.2 (West 2020). When a public body denies a\n\n FOIA request, it must notify the requester in writing regarding its denial and provide the reasons\n\n for the denial. Id. § 140/9. A person denied access to inspect or copy a public record by a public\n\n body may file suit for injunctive or declaratory relief. Id. § 140/11(a). If an individual “prevails”\n\n in such a proceeding, “the court shall award such person reasonable attorney’s fees and costs.” Id.\n\n § 11(i). Additionally, “[i]f the court determines that a public body willfully and intentionally failed\n\n to comply with this Act, or otherwise acted in bad faith, the court shall also impose upon the public\n\n body a civil penalty of not less than $2,500 nor more than $5,000 for each occurrence.” Id. § 11(j).\n\n¶ 13 I. Mootness\n\n¶ 14 “A claim is moot when no actual controversy exists or events occur which make it\n\n impossible for a court to grant effectual relief.” Duncan Publishing, Inc. v. City of Chicago, 304\n\n Ill. App. 3d 778, 782 (1999). Once the plaintiffs have received what they sought, their action\n\n should be dismissed as moot. Id.; Turner, 2019 IL App (3d) 170819, ¶ 12. The mootness doctrine\n\n applies to FOIA claims once the requested records have been provided to the plaintiffs.\n\n See Turner, 2019 IL App (3d) 170819, ¶ 12; Roxana Community Unit School District No. 1 v.\n\n\n\n 4\n\f Environmental Protection Agency, 2013 IL App (4th) 120825, ¶ 42. We review de novo whether\n\n a case is moot. Turner, 2019 IL App (3d) 170819, ¶ 12.\n\n¶ 15 Here, plaintiffs’ FOIA request sought “all sales tax sharing agreements/settlements”\n\n approved by the City Council. While the City initially denied that request because it had no signed\n\n agreements/settlements in its possession, the City eventually provided plaintiffs with “all sales tax\n\n sharing agreements/settlements” approved by the City Council and signed by all necessary parties.\n\n Once plaintiffs received all the documents they requested, the controversy ceased to exist. See\n\n Duncan Publishing, Inc., 304 Ill. App. 3d at 782; Turner, 2019 IL App (3d) 170819, ¶ 12. The\n\n City’s production of the documents made it unnecessary for the trial court to grant the relief\n\n requested by plaintiffs. See Roxana Community Unit School District No.1, 2013 IL App (4th)\n\n 120825, ¶ 42; Turner, 2019 IL App (3d) 170819, ¶ 12. Thus, plaintiffs’ claim is moot, and the trial\n\n court properly dismissed it pursuant to section 2-619(a)(9) of the Code. See 735 ILCS 5/2-\n\n 619(a)(9) (West 2020); Turner, 2019 IL App (3d) 170819, ¶ 13.\n\n¶ 16 II. Fees and penalties\n\n¶ 17 Plaintiffs contend that even if their FOIA complaint was moot, the court should have\n\n ordered the City to pay attorney fees and civil penalties. The City responds that plaintiffs were not\n\n entitled to attorney fees or civil penalties under FOIA.\n\n¶ 18 Requests for attorney fees and civil penalties under FOIA survive even if the underlying\n\n FOIA claim is moot. Turner, 2019 IL App (3d) 170819, ¶ 17; Roxana Community School Unit\n\n School District No. 1 v. Environmental Protection Agency, 2013 IL App (4th) 120825, ¶ 42.\n\n Therefore, we address plaintiffs’ claims for attorney fees and civil penalties.\n\n¶ 19 A. Attorney Fees\n\n\n\n\n 5\n\f¶ 20 Section 11(i) of FOIA provides that if a requester “prevails in a proceeding under this\n\n Section, the court shall award such person reasonable attorney’s fees and costs.” 5 ILCS 140/11(i)\n\n (West 2020). A plaintiff who does not prevail on a FOIA claim is not entitled to attorney fees and\n\n costs. See id.; Timpone v. Illinois Student Assistance Comm’n, 2019 IL App (1st) 181115, ¶ 42;\n\n Garlick v. Bloomingdale Township, 2018 IL App (2d) 171013, ¶ 40. For a party to be entitled to\n\n attorney fees and costs under FOIA, “nothing less than court-ordered relief” is required. Rock River\n\n Times v. Rockford Public School District 205, 2012 IL App (2d) 110879, ¶ 40. Where the public\n\n body releases the requested documents before the court orders it to do so, attorney fees and costs\n\n cannot be recovered by the plaintiff. See id.\n\n¶ 21 Here, the City provided all the requested documents to plaintiffs by January 28, 2020,\n\n without a court order requiring it to do so. Under these circumstances, plaintiffs did not prevail in\n\n their FOIA action and, therefore, were not entitled to attorney fees and costs. See id.; 5 ILCS\n\n 140/11(i) (West 2020); Timpone, 2019 IL App (1st) 181115, ¶ 42; Garlick, 2018 IL App (2d)\n\n 171013, ¶ 40.\n\n¶ 22 B. Civil Penalties\n\n¶ 23 Under section 11(j) of FOIA (5 ILCS 5/11(j) (West 2020)), plaintiffs are entitled to civil\n\n penalties if they can show a public body willfully, intentionally and in bad faith failed to comply\n\n with FOIA. Williams v. Bruscato, 2021 IL App (2d) 190971, ¶ 14. “[T]o warrant the imposition of\n\n a civil penalty under section 11(j), the public body not only must have intentionally failed to\n\n comply with the FOIA but must have done so deliberately, by design, and with a dishonest\n\n purpose.” Williams, 2021 IL App (2d) 190971, ¶ 15.\n\n¶ 24 Whether a public body willfully, intentionally and in bad faith failed to comply with FOIA\n\n is reviewed under the manifest-weight-of-the-evidence standard. Rock River Times, 2012 IL App\n\n\n 6\n\f (2d) 110879, ¶ 48. A trial court’s decision is against the manifest weight of the evidence “only\n\n when an opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or\n\n not based on evidence.” Judgment Services Corp. v. Sullivan, 321 Ill. App. 3d 151, 154 (2001).\n\n¶ 25 A plaintiff cannot maintain a cause of action under FOIA where the records sought did not\n\n exist at the time of the FOIA request. See Walker v. Bruscato, 2019 IL App (2d) 170775, ¶ 45. The\n\n nonexistence of requested documents is a cognizable defense to a FOIA complaint. Bocock v. Will\n\n County Sheriff, 2018 IL App (3d) 170330, ¶ 52. Additionally, a public body does not violate FOIA\n\n by failing to produce documents in its possession that do not fit within the parameters of the\n\n documents specified in the FOIA request. See Harwood v. McDonough, 334 Ill. App. 3d 242, 249-\n\n 50 (2003) (plaintiff’s FOIA request for “invoices” concerning the cost of a specified report\n\n required Department of Commerce and Community Affairs to produce only “invoices”, not all\n\n documents, including unsigned contracts, in its possession related to the cost of the report).\n\n¶ 26 An “agreement” is “a contract duly executed and legally binding on the parties making it.”\n\n The Oxford English Dictionary, Vol. 1, 191 (1989); see also Webster’s Third New International\n\n Dictionary 43 (1976) (defining “agreement” as “a contract duly executed and legally binding on\n\n the parties entering into it”). Where the parties intend that an agreement not be final until it is\n\n reduced to writing and executed, no final agreement exists until a written agreement has been\n\n signed by all parties. Quake Construction, Inc. v. American Airlines, Inc., 141 Ill. 2d 281, 288\n\n (1990) (quoting Baltimore & Ohio Southwestern R.R. Co. v. People ex rel. Allen, 195 Ill. 423\n\n (1902)). This is true even if the parties have agreed on all terms of the contract. Id.\n\n¶ 27 Here, plaintiffs requested copies “of all sales tax sharing agreements/settlements approved\n\n at a city council within the past 30 days.” The City denied the request stating that it was in\n\n possession of no such documents because “all parties have not signed and executed such\n\n\n 7\n\f agreements.” This response was reasonable based on plaintiffs’ request. Plaintiffs did not seek “all\n\n documents related to potential or contemplated sharing agreements/settlements” but sought only\n\n “agreements/settlements” themselves. The City reasonably construed the term “agreement” to\n\n mean only final documents signed by all parties. See Quake Construction, Inc., 141 Ill. 2d at 288;\n\n The Oxford English Dictionary, Vol. 1, 191; Third New International Dictionary, 43. The City did\n\n not possess any duly executed agreements/settlements at the time of plaintiffs’ FOIA request;\n\n therefore, the City did not violate FOIA. See Harword, 344 Ill. App. 3d at 249-50.\n\n¶ 28 Civil penalties under FOIA are available only when a public body willfully, intentionally\n\n and in bad faith fails to comply with FOIA. See 5 ILCS 140/11(j) (West 2020); Williams, 2021 IL\n\n App (2d) 190971, ¶ 14. Here, the City complied with FOIA. Thus, plaintiffs were not entitled to\n\n civil penalties.\n\n CONCLUSION\n\n¶ 29 The judgment of the circuit court of Kankakee County is affirmed.\n\n¶ 30 Affirmed.\n\n\n\n\n 8\n\f"} {"dedup_key":"2022 IL App (3d) 210527-U","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (3d) 210527-U","case_name":"Jason E. Cohee v. Peoria County State’s Attorney’s Office","court_level":"Appellate","appellate_district":"3rd","year":2022,"county":"Peoria","appellate_docket":"3-21-0527","circuit_docket":"21-MR-711","published":0,"authoring_justice":"Daugherity","statute":["FOIA"],"exemptions_cited":["7(1)(c)"],"public_body":"Peoria County State’s Attorney’s Office","requesting_party":"Jason E. Cohee","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court affirmed the trial court's dismissal of the plaintiff's FOIA complaint, holding that the court did not err in denying a motion to continue or in finding that the requested documents were exempt from disclosure under 5 ILCS 140/7(1)(c) as an unwarranted invasion of personal privacy. The court further rejected the plaintiff's argument that the Lieber balancing test was eliminated by 2010 FOIA amendments.","best_text_source":"Court Opinions - FOIA/Cohee v. Peoria County State's Attorney's Office, 2022 IL App (3d) 210527-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:42.870173","site_category":"General Records Exemptions","date_decided":"2022-12-02","site_url":"/cases/2022%20IL%20App%20(3d)%20210527-U/","text_url":"/case-text/2022%20IL%20App%20(3d)%20210527-U.txt","full_text":" NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except\n in the limited circumstances allowed under Rule 23(e)(1).\n\n 2022 IL App (3d) 210527-U\n\n Order filed December 2, 2022\n _____________________________________________________________________________\n\n IN THE\n\n APPELLATE COURT OF ILLINOIS\n\n THIRD DISTRICT\n\n 2022\n\n JASON E. COHEE, Director of ) Appeal from the Circuit Court\n Intelligence-R-Us, ) of the 10th Judicial Circuit,\n ) Peoria County, Illinois.\n Plaintiff-Appellant, )\n ) Appeal No. 3-21-0527\n v. ) Circuit No. 21-MR-711\n )\n PEORIA COUNTY STATE’S )\n ATTORNEY’S OFFICE, ) The Honorable\n ) Frank W. Ierulli,\n Defendant-Appellee. ) Judge, presiding.\n _____________________________________________________________________________\n\n JUSTICE DAUGHERITY delivered the judgment of the court.\n Presiding Justice O’Brien and Justice Holdridge concurred in the judgment.\n _____________________________________________________________________________\n\n ORDER\n\n¶1 Held: In an appeal in a Freedom of Information Act (FOIA) case in which the public-\n body defendant denied the requester plaintiff’s FOIA requests, the appellate court\n found that the trial court did not err in: (1) denying the plaintiff’s motion to\n continue; and (2) granting the defendant’s motion to dismiss the plaintiff’s\n complaint for judicial review. The appellate court, therefore, affirmed the trial\n court’s judgment.\n\n¶2 After his Freedom of Information Act (FOIA or Act) (5 ILCS 140/1 et seq. (West 2020))\n\n requests were denied, plaintiff, Jason E. Cohee, filed a complaint for judicial review of the denial\n\f in the trial court. Defendant, the Peoria County State’s Attorney’s Office, filed a motion to\n\n dismiss the complaint, alleging that the information that plaintiff sought was exempt from\n\n disclosure. Plaintiff opposed the motion to dismiss and also filed a motion to continue the\n\n hearing that had been scheduled on the motion to dismiss. The trial court denied plaintiff’s\n\n motion to continue, went forward with the hearing on defendant’s motion to dismiss, granted\n\n defendant’s motion, and dismissed plaintiff’s complaint for judicial review. Plaintiff appeals.\n\n We affirm the trial court’s judgment.\n\n¶3 I. BACKGROUND\n\n¶4 In May 2021, plaintiff filed various FOIA requests with defendant seeking the disclosure\n\n of, among other things, the personnel files of the State’s Attorney and three of defendant’s\n\n employees. Plaintiff was using the requests to try to gather information about why defendant had\n\n decided not to charge plaintiff’s mother with the alleged financial exploitation of plaintiff. The\n\n following month, defendant sent plaintiff a letter denying the requests and claiming that the\n\n information that plaintiff sought to obtain was exempt from disclosure under section 7(1)(c) of\n\n the FOIA (5 ILCS 140/7(1)(c) (West 2020)) and well-established case law because plaintiff’s\n\n requests constituted an unwarranted invasion of personal privacy.1\n\n¶5 In August 2021, plaintiff filed in the trial court the instant complaint for judicial review\n\n of defendant’s denial of plaintiff’s FOIA requests. As supporting documents, plaintiff attached\n\n to his complaint a copy of his FOIA requests and of defendant’s letter denying those requests.\n\n Plaintiff asked in the complaint that the requested documents be submitted to the trial court for\n\n\n\n\n 1\n Only plaintiff’s FOIA requests that were denied outright are at issue in this appeal. Some of\n plaintiff’s FOIA requests were granted, at least in part, and some pertained to records that did not exist.\n In addition, some of plaintiff’s requests were deemed to be unduly burdensome, and plaintiff was asked to\n narrow down those requests.\n 2\n\f an in camera inspection. The following month, defendant filed a section 2-619 motion to\n\n dismiss the complaint (735 ILCS 5/2-619(a)(9) (West 2020)), claiming that the information that\n\n plaintiff sought to obtain was exempt from disclosure under section 7(1)(c) of the FOIA because\n\n disclosure would constitute an unwarranted invasion of personal privacy. Defendant noted in its\n\n motion that plaintiff had previously been charged with Threatening a Public Official in Peoria\n\n County where one of the victims in the case was the current State’s Attorney (Jodi Hoos) and\n\n had been found not guilty by reason of insanity. Plaintiff filed a response and opposed the\n\n motion to dismiss, and defendant filed a reply. As part of their pleadings, the parties fully\n\n briefed the issues that were before the trial court.\n\n¶6 In November 2021, the trial court held a hearing on defendant’s motion to dismiss. The\n\n hearing had been scheduled since the end of September 2021. A few days before the hearing,\n\n plaintiff, who was self-represented in the trial court proceedings, filed a motion to continue the\n\n hearing so that he could craft a motion for declaratory judgment for violation of his equal\n\n protection rights and so that he could schedule an evidentiary hearing on his declaratory-\n\n judgment motion. At the outset of the November 2021 hearing, the trial court pointed out to\n\n plaintiff that a declaratory-judgement action was a different action that belonged in a different\n\n courtroom, and plaintiff agreed. The trial court, therefore, denied plaintiff’s motion to continue,\n\n and the parties made their oral arguments on defendant’s motion to dismiss.\n\n¶7 During oral arguments, the trial court asked plaintiff what he expected to find in the\n\n personnel files that pertained to defendant’s charging decision as to plaintiff’s mother. Plaintiff\n\n responded that he would not know until he saw what was in the files. As the trial court\n\n questioned plaintiff further about the reason why plaintiff wanted the documents, the following\n\n conversation, in pertinent part, ensued:\n\n\n 3\n\f “THE COURT: --my guess is this: You’re punishing the State’s Attorney’s\n\n Office. They didn’t do something you want so how can you stick your thumb in\n\n their eye? You’re going to do it by requesting personnel records.\n\n [PLAINTIFF]: You’re right.\n\n THE COURT: ‘Cause that’s the only reason I can think of.\n\n [PLAINTIFF]: You’re right. I’m not going to say you’re wrong, your\n\n Honor.”\n\n¶8 After the oral arguments had concluded, the trial court discussed its analysis of the issue\n\n and made its ruling. The trial court applied the four-part balancing test set forth in Lieber v.\n\n Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 408-09 (1997), and found that\n\n three of the four factors weighed strongly against disclosure. More specifically, the trial court\n\n concluded that plaintiff wanted the requested documents to try to punish defendant for denying\n\n plaintiff’s request (presumably, plaintiff’s request to have defendant charge plaintiff’s mother\n\n with financial exploitation of plaintiff), that the public had no interest in the disclosure, that the\n\n degree of invasion of personal privacy was high, and that plaintiff had no other means to obtain\n\n the documents. Based upon its weighing of the Lieber factors, the trial court concluded that\n\n plaintiff’s FOIA requests constituted an “unreasonable invasion of privacy” and granted\n\n defendant’s motion to dismiss plaintiff’s complaint for judicial review. Plaintiff appealed to\n\n challenge the trial court’s denial of plaintiff’s motion to continue and the trial court’s grant of\n\n defendant’s motion to dismiss. 2,3\n\n\n 2\n For the convenience of the reader and to match the order in which the trial court made its\n rulings, we have changed the order of the issues presented by plaintiff on appeal.\n 3\n Plaintiff initially raised as a third issue in this appeal whether this court should grant “Plaintiff’s\n request for an Internal Motion for Judgment on the Pleadings and Petition for Certiorari to the United\n 4\n\f¶9 II. ANALYSIS\n\n¶ 10 A. Denial of Plaintiff’s Motion to Continue\n\n¶ 11 As his first point of contention on appeal, plaintiff argues that the trial court erred in\n\n denying his motion to continue. As best as we can discern, plaintiff asserts that the motion to\n\n continue should have been granted because: (1) defendant did not object to the motion; and (2)\n\n contrary to the trial court’s ruling, the motion did not pertain to a separate action but, rather, was\n\n merely an attempt by plaintiff to go directly to plaintiff’s underlying concern as to whether\n\n defendant could properly refuse to charge plaintiff’s mother with financial exploitation.4\n\n Although not quite clear from plaintiff’s argument, we will presume that plaintiff is asking this\n\n court to reverse the trial court’s ruling on plaintiff’s motion to continue and on defendant’s\n\n motion to dismiss and to remand this case for further proceedings.\n\n¶ 12 Defendant argues that the trial court’s denial of plaintiff’s motion to continue was proper\n\n and should be upheld. In making that argument, defendant notes that: the date of the hearing had\n\n been set for more than a month before plaintiff had filed his motion to continue; plaintiff was not\n\n required to present witnesses at the hearing since the hearing was not an evidentiary one; the\n\n parties had fully briefed the motion to dismiss; and plaintiff was seeking additional time to file a\n\n declaratory judgment action, not to prepare for the hearing on the motion to dismiss. Thus,\n\n\n\n\n States Supreme Court.” Plaintiff, however, did not raise that issue in the trial court or address that issue\n further in his opening brief on appeal, other than merely setting forth the issue in his list of issues\n presented. After defendant asserted in its response brief that the issue had been forfeited and that this\n court lacked jurisdiction to rule upon the issue, plaintiff stated in his reply brief that he “waive[d] any and\n all discussion” of the issue as defendant had suggested. We, therefore, deem the issue to be withdrawn by\n plaintiff and will not discuss it further in this appeal.\n 4\n In his reply brief, plaintiff states that he “waives and concedes” that this issue is “moot\n according to law” because he failed to file an affidavit in support of his motion to continue. Defendant,\n however, has not raised that argument in support of the trial court’s denial of plaintiff’s motion to\n continue. We, therefore, take no position on that aspect of this issue.\n 5\n\f defendant contends that considering plaintiff’s reasons for requesting additional time and the\n\n procedural stance of the case, the trial court did not err in denying plaintiff’s motion to continue\n\n and in going forward with the hearing on defendant’s motion to dismiss. Defendant asks,\n\n therefore, that we affirm the trial court’s denial of plaintiff’s motion to continue in this case.\n\n¶ 13 Section 2-1007 of the Code of Civil Procedure governs requests for continuances in civil\n\n cases. See 735 ILCS 5/2-1007 (West 2020); In re M.R., 305 Ill. App. 3d 1083, 1086 (1999).\n\n The statute provides that a request for a continuance may be granted on good cause shown, in the\n\n discretion of the trial court, and on just terms. 735 ILCS 5/2-1007 (West 2020); M.R., 305 Ill.\n\n App. 3d at 1086. It is well established, however, that a party has no absolute right to a\n\n continuance. M.R., 305 Ill. App. 3d at 1086. The trial court, in its broad discretion, must decide\n\n if the motion to continue should be granted or denied. See Merchants Bank v. Roberts, 292 Ill.\n\n App. 3d 925, 927 (1997). A decisive factor in making that determination is whether the party\n\n seeking the continuance has acted diligently in proceeding with the case. See id. A trial court’s\n\n ruling on a motion to continue will not be reversed on appeal, absent an abuse of discretion.\n\n M.R., 305 Ill. App. 3d at 1086. The threshold for finding an abuse of discretion is high one and\n\n will not be overcome unless it can be said that the trial court’s ruling was arbitrary, fanciful, or\n\n unreasonable, or that no reasonable person would have taken the view adopted by the trial court.\n\n See Blum v. Koster, 235 Ill. 2d 21, 36 (2009); In re Leona W., 228 Ill. 2d 439, 460 (2008). In\n\n addition, the denial of a motion to continue will not be grounds for reversal on appeal unless the\n\n complaining party shows that he or she has been prejudiced by the denial. M.R., 305 Ill. App. 3d\n\n at 1086.\n\n¶ 14 In the present case, after reviewing the record, we find that the trial court did not err in\n\n denying plaintiff’s motion to continue for three reasons. First, the motion to continue was not\n\n\n 6\n\f promptly filed. Although the hearing date on defendant’s motion to dismiss had been set more\n\n than a month earlier, plaintiff waited until just shortly before the hearing date to file his motion\n\n to continue and did not provide the trial court with any reason for the delay. Second, despite\n\n plaintiff’s assertion to the contrary, the motion to continue did not pertain to the matter that was\n\n already pending before the trial court—defendant’s motion to dismiss plaintiff’s complaint for\n\n judicial review of the denial of his FOIA requests—but, rather, pertained to plaintiff’s separate\n\n underlying concern as to whether defendant could refuse to charge plaintiff’s mother with\n\n financial exploitation. Third and finally, the procedural stance of this case did not warrant\n\n granting plaintiff’s motion to continue. At the time that the motion to continue was filed and\n\n when plaintiff later appeared before the trial court, the case had already been scheduled for a\n\n hearing on defendant’s motion to dismiss. The parties had fully briefed that matter, and the trial\n\n court had set aside time for the hearing to take place. Plaintiff was not seeking additional time to\n\n prepare for the hearing, which was not an evidentiary hearing, but, rather, was seeking to pursue\n\n a separate matter as indicated above. Thus, based upon the facts of this case, we find that the\n\n trial court did not commit an abuse of discretion in denying plaintiff’s motion to continue. See\n\n M.R., 305 Ill. App. 3d at 1086; Blum, 235 Ill. 2d at 36; Leona W., 228 Ill. 2d at 460.\n\n¶ 15 B. Grant of Defendant’s Motion to Dismiss\n\n¶ 16 As his second point of contention on appeal, plaintiff argues, although somewhat\n\n implicitly, that the trial court erred in granting defendant’s motion to dismiss plaintiff’s\n\n complaint. Plaintiff asserts that the four-part Lieber balancing test was eliminated when the\n\n legislature made “sweeping changes” to the FOIA in January 2010 and should not have been\n\n used in this case. In making that assertion, however, plaintiff acknowledges that the Illinois\n\n Supreme Court recognized the continued validity of the Lieber case in the supreme court’s recent\n\n\n 7\n\f decision in Mancini Law Group, P.C. v. Schaumburg Police Department, 2021 IL 126675, ¶ 36.\n\n Although not quite clear from plaintiff’s brief on appeal, as best as we can discern, plaintiff is\n\n asking that we reverse the trial court’s grant of defendant’s motion to dismiss and that we\n\n remand this case for further proceedings.5\n\n¶ 17 Defendant argues that the trial court’s ruling was proper and should be upheld. In\n\n support of that argument, defendant makes three contentions. First, defendant asserts that even\n\n though the FOIA was amended in 2010, the four-part Lieber balancing test was, and continues to\n\n be, the appropriate test to be applied in analyzing the type of exemption claimed by defendant in\n\n this case (that the requested documents were exempt from disclosure under the FOIA because\n\n disclosure would constitute an unwarranted invasion of personal privacy). In keeping with that\n\n assertion, defendant maintains that the Lieber decision has not been overturned, that the four-part\n\n balancing test is consistent with the language of the FOIA, and that the appellate courts have\n\n continued to apply the Lieber test after the FOIA was amended. Second, defendant asserts that\n\n plaintiff cannot argue on appeal that the Lieber test does not apply because plaintiff cited the\n\n Lieber test in the trial court proceedings as the controlling law. See Stephens v. Taylor, 207 Ill.\n\n 2d 216, 222 (2003) (recognizing the well-settled legal principle under Illinois law that a party\n\n cannot claim error on appeal when it induced the trial court’s mistake). Third and finally,\n\n defendant asserts that even if plaintiff has properly challenged the dismissal in this appeal\n\n (defendant does not believe that plaintiff has done so because, according to defendant, plaintiff’s\n\n argument on appeal does not specifically challenge the dismissal), this court should still uphold\n\n\n\n 5\n In the conclusion paragraph of his initial brief on appeal, plaintiff indicates, although rather\n ambiguously, that he is seeking a remand in this case. In his reply brief, plaintiff asks that we remand this\n case with an order granting his prayer for relief in his complaint for judicial review. Our task on appeal\n as to this issue, however, is only to determine whether the trial court erred in granting defendant’s motion\n to dismiss.\n 8\n\f the dismissal. For all of the reasons set forth, therefore, defendant asks that we affirm the trial\n\n court’s judgment granting defendant’s motion to dismiss plaintiff’s complaint for judicial review.\n\n¶ 18 In reply to defendant’s argument regarding invited error, plaintiff asserts that although he\n\n mentioned Lieber in the brief attached to his original complaint in the trial court, he also\n\n questioned in the trial court whether the Lieber test was still valid. Thus, plaintiff contends that\n\n he did not invite or interject error into this case. For that reason and all of the other reasons\n\n stated, plaintiff again asks, albeit somewhat implicitly, that we reverse the trial court’s grant of\n\n defendant’s motion to dismiss plaintiff’s complaint for judicial review and that we remand this\n\n case to the trial court “with an Order granting [the] prayer for relief in [plaintiff’s complaint].”\n\n¶ 19 Section 2-619 of the Code of Civil Procedure allows a litigant to obtain an involuntary\n\n dismissal of an action or claim based upon certain defects or defenses. See 735 ILCS 5/2-619\n\n (West 2020); Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003). The statute’s\n\n purpose is to provide litigants with a method for disposing of issues of law and easily proven\n\n issues of fact early in a case, often before discovery has been conducted. See Van Meter, 207 Ill.\n\n 2d at 367; Advocate Health & Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 759\n\n (2004). In a section 2-619 proceeding, the moving party admits the legal sufficiency of the\n\n complaint but asserts an affirmative defense or other matter to defeat the nonmoving party’s\n\n claim. Van Meter, 207 Ill. 2d at 367. Section 2-619 lists several different grounds for which an\n\n involuntary dismissal may be granted. See 735 ILCS 5/2-619(a)(1) to (a)(9) (West 2020).\n\n Under subsection (a)(9), the subsection that applies in this case, a litigant may obtain an\n\n involuntary dismissal of a claim asserted against him if the claim is barred by other affirmative\n\n matter, which avoids the legal effect of or defeats the claim. Id. § 2-619(a)(9). An “affirmative\n\n matter” is something in the nature of a defense that negates the cause of action completely. Van\n\n\n 9\n\f Meter, 207 Ill. 2d at 367. In ruling upon a section 2-619 motion to dismiss, the court must\n\n construe all of the pleadings and supporting documents in the light most favorable to the\n\n nonmoving party. Id. at 367-68. On appeal, a dismissal pursuant to section 2-619 is reviewed de\n\n novo. Id. at 368. The denial of a request for disclosure under the FOIA is also a matter that is\n\n subject to a de novo standard of review on appeal. Hosey v. City of Joliet, 2019 IL App (3d)\n\n 180118, ¶ 9. When de novo review applies, the appellate court performs the same analysis that\n\n the trial court would perform. Direct Auto Insurance Co. v. Beltran, 2013 IL App (1st) 121128,\n\n ¶ 43.\n\n¶ 20 The overriding purpose of the Illinois FOIA is to open governmental records to the light\n\n of public scrutiny. See 5 ILCS 140/1 (West 2020); Bowie v. Evanston Community Consolidated\n\n School District No. 65, 128 Ill. 2d 373, 378 (1989). In keeping with that purpose, under the\n\n FOIA, public records are presumed to be open and accessible—to be open to the public for\n\n inspection and copying. See 5 ILCS 140/1.2 (West 2020); McGee v. Kelley, 2017 IL App (3d)\n\n 160324, ¶ 12. “Such access is necessary to enable the people to fulfill their duties of discussing\n\n public issues fully and freely, making informed political judgments and monitoring government\n\n to ensure that it is being conducted in the public interest.” 5 ILCS 140/1 (West 2020). The\n\n provisions of the FOIA are to be construed broadly so as to achieve the Act’s goal of providing a\n\n free flow of information between the government and the people. See Perry v. Department of\n\n Financial & Professional Regulation, 2018 IL 122349, ¶ 34; Bowie, 128 Ill. 2d at 378.\n\n¶ 21 When a public body receives a proper FOIA request, it must comply with that request\n\n unless one of the statutory exemptions applies. See 5 ILCS 140/3(a) (West 2020); Lieber, 176\n\n Ill. 2d at 407-08; McGee, 2017 IL App (3d) 160324, ¶ 13. The exemptions to the FOIA\n\n disclosure requirement are set forth in section 7 of the Act and are to be read narrowly so as not\n\n\n 10\n\f to defeat the FOIA’s intended purpose. See 5 ILCS 140/7 (West 2020); Lieber, 176 Ill. 2d at\n\n 407-08; McGee, 2017 IL App (3d) 160324, ¶ 12. If a public body denies a request for disclosure\n\n based upon one of the exemptions listed in section 7, it must give written notice of the denial to\n\n the requesting party and specify the particular exemption claimed. 5 ILCS 140/9(b) (West\n\n 2020); Lieber, 176 Ill. 2d at 408; McGee, 2017 IL App (3d) 160324, ¶ 13.\n\n¶ 22 The requesting party may then file a complaint for injunctive and/or declaratory relief in\n\n the trial court to challenge the denial of the request for disclosure. 5 ILCS 140/11(a) (West\n\n 2020); McGee, 2017 IL App (3d) 160324, ¶ 13. If such an action is filed, the public body bears\n\n the burden in the trial court to prove by clear and convincing evidence that the requested records\n\n fall within the exemption claimed. See 5 ILCS 140/1.2, 11(f) (West 2020); Lieber, 176 Ill. 2d at\n\n 408; McGee, 2017 IL App (3d) 160324, ¶ 14. The trial court will review the FOIA request de\n\n novo and shall conduct such an in camera examination of the requested documents as the trial\n\n court finds appropriate to determine whether any portion may be withheld under the claimed\n\n exemption. See 5 ILCS 140/11(f) (West 2020); McGee, 2017 IL App (3d) 160324, ¶ 14.\n\n¶ 23 In this particular case, the defendant claimed that the four personnel files were exempt\n\n under section 7(1)(c) of the FOIA. Section 7(1)(c) provides, in pertinent part, that the following\n\n information is exempt from disclosure:\n\n “Personal information contained within public records, the disclosure of which\n\n would constitute a clearly unwarranted invasion of personal privacy, unless the\n\n disclosure is consented to in writing by the individual subjects of the information.\n\n ‘Unwarranted invasion of personal privacy’ means the disclosure of information\n\n that is highly personal or objectionable to a reasonable person and in which the\n\n subject’s right to privacy outweighs any legitimate public interest in obtaining the\n\n\n 11\n\f information. The disclosure of information that bears on the public duties of\n\n public employees and officials shall not be considered an invasion of personal\n\n privacy.” 5 ILCS 140/7(1)(c) (West 2020).\n\n To determine whether the disclosure of requested documents would constitute an unwarranted\n\n invasion of personal privacy under section 7(1)(c) of the FOIA, courts apply the four-part Lieber\n\n balancing test. See Lieber, 176 Ill. 2d at 408-09; McGee, 2017 IL App (3d) 160324, ¶ 17. In\n\n conducting that balancing test, the courts consider the following four factors: (1) the plaintiff’s\n\n interest in disclosure; (2) the public interest in disclosure; (3) the degree of invasion of personal\n\n privacy; and (4) the availability of alternative means of obtaining the requested information.\n\n McGee, 2017 IL App (3d) 160324, ¶ 17.\n\n¶ 24 In the present case, after reviewing the record, we find that the trial court properly\n\n granted defendant’s section 2-619 motion to dismiss. See 735 ILCS 5/2-619 (West 2020); Van\n\n Meter, 207 Ill. 2d at 367. As the trial court correctly noted, three of the four Lieber factors\n\n weigh in favor of non-disclosure. First, plaintiff’s interest in disclosure was low since plaintiff\n\n was only seeking the requested documents to try to punish defendant for refusing to charge\n\n plaintiff’s mother with financial exploitation. Second, the public had no interest in the disclosure\n\n of the personnel files at issue. And, third, the degree of invasion of personal privacy was high as\n\n the personnel files were likely to contain highly personal and confidential information, such as\n\n home addresses, phone numbers, and insurance and other benefit information. The only Lieber\n\n factor that weighed in favor of disclosure was the fourth factor—that plaintiff had no other\n\n means of obtaining the requested information. Thus, when the four Lieber factors are balanced\n\n in this case, they weigh strongly against disclosure of the requested information. See Lieber, 176\n\n Ill. 2d at 408-09; McGee, 2017 IL App (3d) 160324, ¶ 17. We must conclude, therefore, that\n\n\n 12\n\f disclosure of the requested documents would constitute an unwarranted invasion of personal\n\n privacy and was exempt under the FOIA. See 5 ILCS 140/7(1)(c) (West 2020). Accordingly,\n\n we find that the trial court properly granted defendant’s motion to dismiss plaintiff’s complaint.\n\n¶ 25 In reaching that conclusion, we reject plaintiff’s argument—that the Lieber balancing test\n\n was eliminated when the FOIA was amended in 2010. As plaintiff himself acknowledges, our\n\n supreme court has already rejected that same argument in a slightly different context. See\n\n Mancini Law Group, P.C., 2021 IL 126675, ¶ 36 (rejecting the argument that the 2010\n\n amendments to the FOIA overturned the waiver rule set forth in the Lieber case). In addition,\n\n the appellate court, in ruling upon the application of the unwarranted invasion of personal\n\n privacy exemption, has continued to apply the Lieber balancing test, despite the amendment of\n\n the FOIA. See, e.g., McGee, 2017 IL App (3d) 160324, ¶¶ 17-20; State Journal-Register v.\n\n University of Illinois Springfield, 2013 IL App (4th) 120881, ¶¶ 43-67. We, therefore, find no\n\n reason to deviate from the established law on this matter and affirm the trial court’s denial of\n\n defendant’s motion to dismiss. Having reached that conclusion, we need not address the parties’\n\n other assertions on this issue.\n\n¶ 26 III. CONCLUSION\n\n¶ 27 For the foregoing reasons, we affirm the judgment of the circuit court of Peoria County.\n\n¶ 28 Affirmed.\n\n\n\n\n 13\n\f"} {"dedup_key":"2022 IL App (4th) 210071","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (4th) 210071","case_name":"Staake v. Department of Corrections","court_level":"Appellate","appellate_district":"4th","year":2022,"county":"Sangamon","appellate_docket":"4-21-0071","circuit_docket":"18-MR-710","published":1,"authoring_justice":"Steigmann","statute":["FOIA"],"exemptions_cited":[],"public_body":"Department of Corrections","requesting_party":"Jared M. Staake","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that while mid-litigation disclosure of FOIA records does not automatically establish bad faith, the Department of Corrections' failure to provide a detailed factual basis for its initial denial created a genuine issue of material fact. Consequently, the appellate court reversed the trial court's grant of summary judgment regarding the withheld educational documents and remanded for further proceedings.","best_text_source":"Court Opinions - FOIA/Staake v. Illinois Department of Corrections, 2022 IL App (4th) 210071.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:43.175243","site_category":"FOIA Response Process","date_decided":"2022-06-06","site_url":"/cases/2022%20IL%20App%20(4th)%20210071/","text_url":"/case-text/2022%20IL%20App%20(4th)%20210071.txt","full_text":" Digitally signed\n by Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2023.05.23\n 10:41:05 -05'00'\n\n\n\n Staake v. Department of Corrections, 2022 IL App (4th) 210071\n\n\n\nAppellate Court JARED M. STAAKE, Plaintiff-Appellant, v. THE DEPARTMENT\nCaption OF CORRECTIONS, Defendant-Appellee.\n\n\n\nDistrict & No. Fourth District\n No. 4-21-0071\n\n\n\nFiled June 6, 2022\n\n\n\nDecision Under Appeal from the Circuit Court of Sangamon County, No. 18-MR-710;\nReview the Hon. Rudolph M. Braud Jr., Judge, presiding.\n\n\n\nJudgment Affirmed in part and reversed in part.\n Cause remanded.\n\n\nCounsel on Jared M. Staake, of Beardstown, appellant pro se.\nAppeal\n Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,\n Solicitor General, and Benjamin F. Jacobson, Assistant Attorney\n General, of counsel), for appellee.\n\n\n\nPanel JUSTICE STEIGMANN delivered the judgment of the court, with\n opinion.\n Justices DeArmond and Holder White concurred in the judgment and\n opinion.\n\f OPINION\n\n¶1 In February 2018, plaintiff Jared M. Staake, an inmate in the custody of the Illinois\n Department of Corrections (DOC), pro se filed a complaint for declaratory judgment and\n injunctive relief against defendant, DOC, pursuant to the Freedom of Information Act (FOIA)\n (5 ILCS 140/1 et seq. (West 2018)). The complaint also sought civil penalties, attorney fees,\n and costs. While Staake’s complaint was pending, DOC provided him with copies of the\n records he sought.\n¶2 In November 2019, Staake filed a motion for partial summary judgment, and in February\n 2020, DOC filed a motion for summary judgment. In November 2020, the trial court granted\n summary judgment in favor of DOC on all issues.\n¶3 Staake appeals, arguing that (1) the DOC’s midlitigation disclosure of the documents did\n not render his claim for declaratory relief moot and (2) the trial court erred by granting\n summary judgment regarding his claims for costs and civil penalties. We affirm the trial court’s\n entry of summary judgment based on mootness but reverse and remand regarding Staake’s\n claims for costs and civil penalties.\n\n¶4 I. BACKGROUND\n¶5 A. Staake’s FOIA Requests\n¶6 1. The Lippert Complaint\n¶7 In February 2018, Staake filed a FOIA request with DOC for a copy of “[t]he controlling\n complaint on file in a class action lawsuit against [DOC] personel [sic], i.e., Lippert v. Godinez,\n #1:10-cv-04603” (Lippert complaint). In March 2018, DOC denied his request, citing section\n 7(1)(a) of the FOIA, which reads as follows:\n “(1) When a request is made to inspect or copy a public record that contains\n information that is exempt from disclosure under this Section, but also contains\n information that is not exempt from disclosure, the public body may elect to redact the\n information that is exempt. The public body shall make the remaining information\n available for inspection and copying. Subject to this requirement, the following shall\n be exempt from inspection and copying:\n (a) Information specifically prohibited from disclosure by federal or State law\n or rules and regulations implementing federal or State law.” Id. § 7(1)(a).\n¶8 DOC explained in its written response to Staake’s request that, because its regulations\n prohibited an inmate from “[p]osessing [sic] or soliciting unauthorized personal information\n regarding another [inmate], *** including, but not limited to, personnel files [and] *** medical\n or mental health records” (see 20 Ill. Adm. Code 504.Appendix A (2017) (offense No. 211,\n possession or solicitation of unauthorized personal information)), the Lippert complaint, which\n contained such information, was exempt from disclosure under section 7(1)(a) of the FOIA (5\n ILCS 140/7(1)(a) (West 2018)). Later that month, Staake requested that DOC reconsider its\n decision because in his initial request he asked DOC to “redact sensitive or exempt information\n [and] *** release any segregable portion.”\n¶9 In April 2018, DOC denied Staake’s request for reconsideration because he did not\n “submit[ ] a request for records” but instead submitted “a general request for data, information,\n [or] statistics.” In response, Staake requested review by the Public Access Counselor (PAC)\n\n -2-\n\f pursuant to section 9.5 of the FOIA. See id. § 9.5 (providing for review of denied FOIA\n requests by the Office of the Attorney General). Defendant attached to his response copies of\n his original FOIA request and DOC’s denial of the original request. The PAC “determined that\n no further inquiry [was] warranted,” exercised its discretion to resolve Staake’s request for\n review “by means other than the issuance of a binding opinion,” and closed the file.\n\n¶ 10 2. The Educational Documents\n¶ 11 In August 2018, Staake filed a second FOIA request with DOC for three “educational\n documents.” Specifically, he requested “educational contract[s] for Earned Program Sentence\n Credits” (EPSCs), which he contended were located either in (1) the “educational building in\n [Staake’s] educational files of Lincoln [Correctional Center]” or (2) his master file in the\n records office. According to Staake, each document created an agreement under which DOC\n would award Staake EPSCs, which reduced his term of incarceration, “in exchange for\n [Staake’s] participation and completion of High School Equivalency program[m]ing.” Staake\n alleged that although an inmate normally did not have access to his master file, the documents\n contained decisions that affected the duration of his sentence, which entitled him to the\n educational documents under section 3-5-1(b) of the Unified Code of Corrections (730 ILCS\n 5/3-5-1(b) (West 2018)). Section 3-5-1(b) provides, “If [DOC] makes a determination under\n this Code which affects the length of the period of confinement or commitment, the committed\n person and his counsel shall be advised of factual information relied upon by [DOC] to make\n the determination ***.” Id.\n¶ 12 In September 2018, DOC denied Staake’s request, citing section 7(1)(a) of the FOIA. DOC\n explained that, under section 3-5-1(b) of the Unified Code of Corrections (id.), “the master\n record files of committed persons shall be confidential and access shall be limited to authorized\n persons.” DOC further explained that “ ‘other information that [DOC] determines is relevant\n to the secure confinement and rehabilitation of the committed person’ is exempt from release\n pursuant to 730 ILCS 5/3-5-1(a)(13) [(West 2018)].” According to DOC’s brief on appeal,\n DOC thus “concluded, because the educational [documents] were in Staake’s master file, they\n were exempt from release *** under section 7(1)(a) of [the FOIA].” Staake did not seek\n reconsideration of his request for the educational documents.\n\n¶ 13 B. The Complaint\n¶ 14 In September 2018, Staake pro se filed a complaint against DOC for declaratory and\n injunctive relief pursuant to section 11 of the FOIA (5 ILCS 140/11 (West 2018)). Staake\n alleged that by denying his FOIA requests for the Lippert complaint and the educational\n documents, DOC had willfully and intentionally, or otherwise in bad faith, violated the FOIA.\n Staake sought five forms of relief: (1) a declaration that DOC’s denials were willful and\n intentional violations of the FOIA or otherwise made in bad faith, (2) “a declaration that\n [DOC’s] acts and omissions violated the [Unified] Code of Corrections,” (3) an injunction\n prohibiting DOC from withholding the requested documents and for DOC to produce those\n documents, (4) a civil penalty for each violation of the FOIA, and (5) “[a]n award of the full\n cost arising out of this litigation.”\n¶ 15 In support of his complaint, Staake attached (1) copies of his FOIA requests, (2) DOC’s\n responses to those requests, (3) his appeal to the PAC, (4) the PAC’s response, and (5) copies\n of other inmates’ requests for educational documents, which DOC had also denied.\n\n -3-\n\f¶ 16 C. The Cross-Motions for Summary Judgment\n¶ 17 In December 2018, DOC mailed Staake a redacted copy of the Lippert complaint, and in\n May 2019, DOC mailed Staake copies of the educational documents. These documents were\n what Staake had previously requested, but DOC withheld from him despite his FOIA requests.\n¶ 18 In November 2019, Staake filed a motion for partial summary judgment regarding his claim\n for declaratory relief. He argued that although his claim for injunctive relief became moot once\n he was provided with the Lippert complaint and the educational documents, his claims for\n declaratory relief were still an actual controversy. Staake further argued that in order for the\n trial court to impose costs and civil penalties on DOC, the court needed to either grant\n injunctive relief or declaratory relief under sections 11(i) and 11(j) of the FOIA.\n¶ 19 Regarding DOC’s failure to disclose the Lippert complaint, Staake argued that (1) DOC\n should have released to him a redacted copy of the complaint consistent with the FOIA and\n (2) by withholding the documents, DOC violated the FOIA. Regarding the educational\n documents, Staake argued that “DOC’s internal policies, mandate[d] the release of [the\n materials] ‘as authorized by the student.’ ” Therefore, Staake argued, DOC’s reliance on the\n exemption in section 7(1)(a) was erroneous and DOC violated the FOIA by denying both of\n Staake’s requests for the documents.\n¶ 20 In February 2020, DOC filed its own motion for summary judgment on all of Staake’s\n claims, arguing that (1) because DOC disclosed the documents that Staake requested, his\n claims for declaratory relief were moot; (2) because Staake was a pro se litigant proceeding\n in forma pauperis, he incurred no attorney fees or costs; and (3) Staake failed to demonstrate\n that DOC willfully and intentionally, or in bad faith, denied his FOIA requests.\n¶ 21 In Staake’s reply to DOC’s motion for summary judgment, Staake argued that his claims\n for declaratory judgment were not moot because such a judgment was necessary to establish\n his entitlement to attorney fees, costs, and civil penalties. In addition, Staake argued that\n summary judgment was inappropriate on his claims for costs and civil penalties because\n (1) discovery remained pending on those claims and was necessary for their resolution,\n (2) DOC did not present sufficient evidence to entitle it to summary judgment on those claims,\n and (3) material facts were still in dispute regarding DOC personnel’s state of mind when they\n denied his requests.\n¶ 22 In September 2020, the trial court ordered DOC to file a supplemental memorandum in\n support of its cross-motion for summary judgment—specifically, regarding the issue of\n mootness. In DOC’s memorandum, it argued that the facts were identical to those in Turner v.\n Joliet Police Department, 2019 IL App (3d) 170819, 123 N.E.3d 1147, and like in that case,\n Staake’s claims for declaratory judgment became moot upon DOC’s disclosure of the\n requested documents. Staake did not file a response to DOC’s supplemental memorandum.\n¶ 23 In November 2020, the trial court granted DOC’s motion for summary judgment. The court\n found that Staake’s “claims for declaratory and injunctive relief regarding disclosures of\n records [were] moot as [Staake had] received all records sought in his FOIA requests.”\n Regarding attorney fees, costs, and civil penalties, the court found that Staake did not present\n sufficient evidence to (1) support a finding that DOC acted willfully and intentionally or in bad\n faith or (2) demonstrate that he had incurred attorney fees or costs. Staake filed a motion to\n reconsider, which the court denied.\n\n\n\n -4-\n\f¶ 24 This appeal followed.\n\n¶ 25 II. ANALYSIS\n¶ 26 Staake appeals, arguing that (1) DOC’s mid-litigation disclosure of the documents did not\n render his claim for declaratory relief moot and (2) the trial court erred by granting summary\n judgment regarding his claims for costs and civil penalties. We affirm the trial court’s entry of\n summary judgment based on mootness but reverse and remand regarding Staake’s claims for\n costs and civil penalties.\n\n¶ 27 A. The Applicable Law\n¶ 28 “[S]ummary judgment should be granted only where the pleadings, depositions,\n admissions and affidavits on file, when viewed in the light most favorable to the nonmoving\n party, show that there is no genuine issue as to any material fact and that the moving party is\n clearly entitled to judgment as a matter of law.” (Internal quotation marks omitted.)\n International Ass’n of Fire Fighters, Local 50 v. City of Peoria, 2022 IL 127040, ¶ 10. “When\n parties file cross-motions for summary judgment, they mutually agree that there are no genuine\n issues of material fact and that only a question of law is involved.” (Internal quotation marks\n omitted.) Id. ¶ 11. “However, the mere filing of cross-motions for summary judgment does not\n establish that there is no issue of material fact, nor does it obligate a court to render summary\n judgment.” Pielet v. Pielet, 2012 IL 112064, ¶ 28, 978 N.E.2d 1000. If the facts are undisputed,\n a genuine issue of material fact exists when “ ‘reasonable persons might draw different\n inferences from the undisputed facts.’ ” Flynn v. Town of Normal, 2018 IL App (4th) 170070,\n ¶ 27, 119 N.E.3d 522 (quoting Mashal v. City of Chicago, 2012 IL 112341, ¶ 49, 981 N.E.2d\n 951). Appellate courts review grants of summary judgment de novo. City of Peoria, 2022 IL\n 127040, ¶ 11.\n\n¶ 29 B. Mootness\n¶ 30 We first address whether Staake’s claims for declaratory relief are moot. “As a general\n rule, courts in Illinois do not decide moot questions, render advisory opinions, or consider\n issues where the result will not be affected regardless of how those issues are decided.”\n (Internal quotation marks omitted.) In re Julie M., 2021 IL 125768, ¶ 21. An issue is moot\n when an actual controversy no longer exists between the parties for which relief can be granted.\n In re Benny M., 2017 IL 120133, ¶ 17, 104 N.E.3d 313. When a public body provides\n information under the FOIA, even after delay, claims for declaratory or injunctive relief\n concerning the information’s production are moot. Roxana Community Unit School District\n No. 1 v. Environmental Protection Agency, 2013 IL App (4th) 120825, ¶ 41, 998 N.E.2d 961\n (concluding “that once a public body provides the information requested under [the] FOIA,\n even after a lengthy delay, the controversy over the public body’s production of documents\n ceases to exist” (citing Duncan Publishing, Inc. v. City of Chicago, 304 Ill. App. 3d 778, 709\n N.E.2d 1281 (1999))).\n¶ 31 Here, Staake was provided with both the Lippert complaint and the educational documents\n he requested, which were the bases for his complaint. That DOC provided Staake the\n documents mid-litigation makes no difference in a mootness analysis. See id. Because the\n information Staake requested under the FOIA is no longer being withheld, an actual\n controversy no longer exists, and Staake’s claim for declaratory relief is moot. Accordingly,\n\n -5-\n\f we affirm the trial court’s grant of summary judgment regarding Staake’s claim for declaratory\n relief.\n¶ 32 We note, however, that Staake’s claims for attorney fees, costs, and civil penalties survive.\n See id. ¶ 42 (determining that under Duncan, 304 Ill. App. 3d at 782, the ancillary claims for\n fees, costs, and a civil penalty survive even after disclosure of the documents requested under\n the FOIA).\n\n¶ 33 C. The Trial Court’s Grant of Summary Judgment\n Regarding Attorney Fees, Costs, and Civil Penalties\n¶ 34 1. Bad Faith and Civil Penalties\n¶ 35 Staake’s claims for civil penalties were made pursuant to section 11(j) of the FOIA, which\n states the following:\n “If the court determines that a public body willfully and intentionally failed to comply\n with this Act, or otherwise acted in bad faith, the court shall also impose upon the public\n body a civil penalty of not less than $2,500 nor more than $5,000 for each occurrence.”\n (Emphasis added.) 5 ILCS 140/11(j) (West 2018).\n¶ 36 In other words, to obtain civil penalties, the plaintiff must demonstrate that the public body\n (1) failed to comply with the FOIA and (2) did so “willfully, intentionally, and in bad faith.”\n Williams v. Bruscato, 2021 IL App (2d) 190971, ¶ 14 (citing Garlick v. Bloomingdale\n Township, 2018 IL App (2d) 171013, ¶ 40, 127 N.E.3d 193 (affirmed the trial court’s decision\n to strike the plaintiff’s petition for civil penalties under section 11(j) “because he could not\n show bad faith on the township’s part”)). Although the FOIA does not define “bad faith,” the\n Second District in Williams defined it as failing to comply with the FOIA “deliberately, by\n design, and with a dishonest purpose.” Id. ¶ 15.\n\n¶ 37 a. The Lippert Complaint\n¶ 38 DOC argues that it did not act willfully and intentionally, or otherwise in bad faith, by\n withholding the Lippert complaint because it relied on a “reasonable interpretation” of section\n 7(1)(a) in denying Staake’s FOIA request. In support, DOC cites Rock River Times v. Rockford\n Public School District 205, 2012 IL App (2d) 110879, ¶¶ 51-54, 977 N.E.2d 1216, asserting\n that a “public body’s reasonable interpretation of exemptions failed to show bad faith conduct.”\n However, DOC overstates the value of that case to DOC’s position. We view Rock River Times\n as no help at all to DOC.\n\n¶ 39 i. Rock River Times\n¶ 40 In Rock River Times, the school district initially cited two exemptions in its first denial of\n the newspaper’s FOIA request and later cited a third different exemption only after the first\n two were determined to be inapplicable. Id. ¶ 20. Ultimately, the appellate court agreed with\n the trial court that “[t]he record gave a ‘clear impression that the [school] understood that it\n was wrong on all three exemptions, but was looking for a way to save face rather than simply\n admitting it was wrong’ ” by asserting the third exemption. Id. ¶ 22.\n¶ 41 DOC’s citing of Rock River Times is peculiar because, first, the appellate court in that case\n affirmed the trial court’s conclusion that the school district had acted in bad faith by denying a\n FOIA request. Id. ¶ 54. Second, unlike in the present case where the record is scant regarding\n\n -6-\n\f DOC’s reasoning for its rejections, the appellate court in Rock River Times had plenty of\n evidence before it to draw the conclusion that the school district acted in bad faith. See id. ¶¶ 3-\n 22. And third, regarding the Lippert complaint, DOC’s initial rejection based on section 7(1)(a)\n of the FOIA and subsequent response to Staake’s request for reconsideration, which\n purportedly provided a new, separate reason for rejection, are very similar to the facts of Rock\n River Times. See id. ¶¶ 21-23 (finding bad faith violation of the FOIA).\n\n¶ 42 ii. The Entry of Summary Judgment Was Improper\n¶ 43 Because the present case comes before us on a grant of summary judgment, we analyze the\n trial court’s decision in the light most favorable to the nonmoving party—in this case, Staake.\n See City of Peoria, 2022 IL 127040, ¶ 10. Applying this standard, for the reasons that follow,\n we conclude that summary judgment was premature because questions of material fact remain\n regarding DOC’s denials of Staake’s FOIA request for the Lippert complaint.\n¶ 44 First, DOC’s claim that it could not have acted in bad faith because it had a reasonable\n belief that the Lippert complaint was exempt from disclosure based on section 7(1)(a) of FOIA,\n without more, is difficult for this court—or the trial court for that matter—to determine based\n on this record at the summary judgment stage.\n¶ 45 Section 7(1) provides that certain materials are exempt from disclosure, but the wording of\n the statute also provides a caveat:\n “When a request is made to inspect or copy a public record that contains information\n that is exempt from disclosure under this Section, but also contains information that is\n not exempt from disclosure, the public body may elect to redact the information that is\n exempt. The public body shall make the remaining information available for inspection\n and copying.” (Emphases added.) 5 ILCS 140/7(1) (West 2018).\n¶ 46 In other words, when a FOIA request is made to a public body, it must redact exempted\n portions of the requested documents and give the remaining information over to the requestor.\n Id.; see also Lucy Parsons Labs v. City of Chicago Mayor’s Office, 2021 IL App (1st) 192073,\n ¶ 19 (“[T]he public body’s duty to redact the exempt information and produce the nonexempt\n information remains even where the redactions would leave the requestor with nothing\n useful.”); Kelly v. Village of Kenilworth, 2019 IL App (1st) 170780, ¶ 39, 156 N.E.3d 480\n (holding that law enforcement bodies must redact exempt matters and disclose the rest). A\n plain reading of this provision in the statute and the case law clearly shows that the redaction\n of exempt portions of documents is not only possible but required.\n¶ 47 The FOIA also requires the following:\n “When a request for public records is denied on the grounds that the records are exempt\n under Section 7 of this Act, the notice of denial shall specify the exemption claimed to\n authorize the denial and the specific reasons for the denial, including a detailed factual\n basis and a citation to supporting legal authority.” (Emphasis added.) 5 ILCS 140/9(b)\n (West 2018).\n¶ 48 DOC’s providing these details might have allowed for “adequate adversarial testing” of\n any claimed exemptions in the trial court. Peoria Journal Star v. City of Peoria, 2016 IL App\n (3d) 140838, ¶ 12, 52 N.E.3d 711. However, in the present case, DOC relied on section 7(1)(a)\n to withhold the Lippert complaint in its entirety but did not provide “a detailed factual basis,”\n let alone any explanation at all, for why it chose not to redact the exempted information and\n\n\n -7-\n\f provide Staake with the redacted complaint. We note again the contrast between the lack of\n evidence in this case explaining DOC’s actions regarding Staake’s FOIA request as compared\n to the evidence before the trial court in Rock River Times.\n¶ 49 Second, although DOC is correct that its reassessment of its original interpretation of the\n exemptions, by itself, is not enough to demonstrate bad faith, the fact that it did so only after\n Staake filed a lawsuit warrants some scrutiny. That scrutiny is not a penalty for DOC’s\n continued consideration of the FOIA request but is simply a check to ensure that a public body\n does not have a practice of issuing boilerplate denials and granting requests only after litigation\n has commenced.\n¶ 50 Third, the facts of this case are similar to those of Rock River Times, in which, as we noted\n earlier, the appellate court affirmed the trial court’s finding of bad faith. Rock River Times,\n 2012 IL App (2d) 110879, ¶ 54. Here, similar to the school in Rock River Times, DOC asserted\n a different and new reason for why it would not disclose a requested document (the Lippert\n complaint) only after Staake correctly pointed out in his request for reconsideration that DOC\n could simply redact the document of any exempt information. Like in that case, here, too, an\n inference could be drawn that DOC recognized its mistake but, in wanting to “save face,” chose\n to provide a non-exemption-based reason to refuse Staake’s request. Because of the lack of\n information in the record, we cannot determine what DOC’s reasoning may have been.\n¶ 51 Ultimately, we conclude that when viewing Staake’s claim of bad faith in the light most\n favorable to him, questions of material fact remain that preclude summary judgment. For\n example: (1) Why did DOC withhold the Lippert complaint in its entirety instead of redacting\n it? (2) How did DOC come to the conclusion that the complaint was exempt from disclosure?\n (3) Who made that initial decision? (4) And, importantly, why did DOC state that Staake’s\n request was not a proper “request for records” only after he (correctly) pointed out DOC could\n redact the complaint?\n¶ 52 Accordingly, the trial court erred in granting summary judgment in favor of DOC regarding\n the Lippert complaint.\n\n¶ 53 b. The Educational Documents\n¶ 54 Next, DOC argues that its decision to withhold the educational documents was not in bad\n faith because it reasonably believed that the items were contained in Staake’s master file and,\n accordingly, were exempt from disclosure under section 7(1)(a) because (1) section 3-5-1(b)\n of the Unified Code of Corrections provided that an inmate’s master files were confidential\n and (2) section 3-5-1(a)(13) exempted from release any “other information that the respective\n Department determines is relevant to the secure confinement and rehabilitation of” an inmate.\n 730 ILCS 5/3-5-1(a)(13), (b) (West 2018). DOC also argues that, had Staake asked for\n reconsideration, DOC could have reviewed its denial prior to litigation.\n¶ 55 Whether the trial court erred by granting summary judgment in favor of DOC regarding\n the educational documents is a closer question. However, DOC’s failure to provide a detailed\n factual basis to Staake as required by section 9(b) of the FOIA makes it impossible, on this\n record, to determine whether DOC acted in bad faith by withholding the documents. As we\n stated earlier, a mid-litigation disclosure, which in itself is insufficient to show bad faith,\n nonetheless invites scrutiny of DOC’s original decisions.\n\n\n\n -8-\n\f¶ 56 We conclude that genuine issues of material fact remain regarding whether DOC acted in\n bad faith when it denied Staake’s request for the educational documents and the trial court\n erred by granting summary judgment with respect to those documents.\n\n¶ 57 2. Attorney Fees and Costs\n¶ 58 Because we reverse and remand for further proceedings on whether DOC acted in bad faith,\n we need not address the parties’ arguments about attorney fees and costs. The trial court may\n consider those issues on remand.\n\n¶ 59 III. CONCLUSION\n¶ 60 For the reasons stated, we affirm in part, reverse in part, and remand for further proceedings\n consistent with this opinion.\n\n¶ 61 Affirmed in part and reversed in part.\n¶ 62 Cause remanded.\n\n\n\n\n -9-\n\f"} {"dedup_key":"2022 IL App (4th) 210290","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (4th) 210290","case_name":"Martinez v. City of Springfield","court_level":"Appellate","appellate_district":"4th","year":2022,"county":"Sangamon","appellate_docket":"4-21-0290","circuit_docket":"2020-CH-99","published":1,"authoring_justice":"Knecht","statute":["FOIA"],"exemptions_cited":[],"public_body":"City of Springfield and Springfield Police Department","requesting_party":"Freddy Martinez","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that a FOIA requester who receives requested documents after filing suit may still be considered a prevailing party entitled to attorney fees. The appellate court reversed the trial court's summary judgment and remanded the case for a determination of reasonable attorney fees.","best_text_source":"Court Opinions - FOIA/Martinez v. City of Springfield, 2022 IL App (4th) 210290.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:43.396283","site_category":"Fees & Burdensome Requests","date_decided":"2022-07-14","site_url":"/cases/2022%20IL%20App%20(4th)%20210290/","text_url":"/case-text/2022%20IL%20App%20(4th)%20210290.txt","full_text":" Digitally signed\n by Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2023.08.18\n 13:55:09 -05'00'\n\n\n\n Martinez v. City of Springfield, 2022 IL App (4th) 210290\n\n\n\nAppellate Court FREDDY MARTINEZ, Plaintiff-Appellant, v. THE CITY OF\nCaption SPRINGFIELD and SPRINGFIELD POLICE DEPARTMENT,\n Defendants-Appellees.\n\n\n\nDistrict & No. Fourth District\n No. 4-21-0290\n\n\n\nFiled July 14, 2022\n\n\n\nDecision Under Appeal from the Circuit Court of Sangamon County, No. 2020-CH-\nReview 99; the Hon. Adam Giganti, Judge, presiding.\n\n\n\nJudgment Reversed and remanded.\n\n\nCounsel on Matthew Topic, Josh Loevy, Joshua Burday, Merrick Wayne, and\nAppeal Shelley Geiszler, of Loevy & Loevy, of Chicago, for appellant.\n\n James Zerkle, Corporation Counsel, of Springfield (Kateah M.\n McMasters, Assistant Corporation Counsel, of counsel), for appellees.\n\n\n\nPanel PRESIDING JUSTICE KNECHT delivered the judgment of the court,\n with opinion.\n Justices Turner and Harris concurred in the judgment and opinion.\n\f OPINION\n\n¶1 In April 2020, plaintiff, Freddy Martinez, filed a complaint against defendants, City of\n Springfield and Springfield Police Department (collectively, Springfield), asserting a violation\n of the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2020)). Plaintiff sought\n a declaration Springfield violated FOIA, an order mandating Springfield produce the requested\n documents, attorney fees, and civil penalties.\n¶2 Springfield subsequently provided records to plaintiff’s satisfaction and moved for\n summary judgment on the complaint. The trial court found Springfield acted reasonably and\n granted the motion. Plaintiff appealed, arguing the trial court erred by (1) ruling on the\n propriety of Springfield’s search and production of records when that issue became moot after\n Springfield produced the documents and (2) by denying him attorney fees. We agree with\n plaintiff on the second issue and reverse.\n\n¶3 I. BACKGROUND\n¶4 On January 21, 2020, plaintiff submitted a FOIA request to Springfield seeking records\n related to “Clearview AI”:\n “[(1):] Any invoices with Clearview AI, procurement contracts or other payment\n between Springfield IL and Clearview. I further request all discussion about the\n purposes of purchasing, testing or evaluating Clearview.\n [(2):] All discussion between April Smiddy and any other police officers with the\n keyword ‘Clearview.’ I have identified at least one email to search but *do not limit\n your search to just that email*. Please search all other emails, inboxes, documents,\n police reports and other similar locations where records may be reasonably located.\n [(3):] Documents sufficient to show any investigations where Clearview may have\n been used to identify a suspect or a lead.”\n¶5 Approximately two weeks later, on February 5, 2020, Springfield responded to plaintiff’s\n FOIA request. Springfield sent an e-mail stating, “The documents that you requested for this\n FOIA request are attached.” The attached document was likely the February 4, 2020, letter\n from defense counsel to plaintiff that reveals no documents were produced. Regarding\n plaintiff’s first request for documents, defense counsel reported Springfield “possesse[d] no\n responsive documentation.” As to the second request, defense counsel stated plaintiff’s request\n was unduly burdensome under section 3(g) of FOIA (id. § 3(g)). In support of the response,\n defense counsel informed plaintiff an e-mail search for the term “Clearview” resulted in over\n 1000 e-mails and many of those e-mails were unrelated to Clearview AI. Counsel further\n maintained the third request was “vague and ambiguous” and Springfield was unable to\n determine what records plaintiff wanted.\n¶6 Plaintiff responded to the e-mail later the same day. Plaintiff wrote to the “FOIA officer,”\n stating FOIA required Springfield “meet and confer with” him before invoking the unduly\n burdensome exception. Plaintiff requested Springfield perform “another search for records and\n [provide] the communications between Smiddy and any email address” within a specified\n domain. Plaintiff concluded such “should be sufficient to satisfy my initial request and narrow\n the search to a more manageable format.”\n\n\n\n -2-\n\f¶7 Beginning February 12, 2020, plaintiff sent two additional e-mails to the FOIA officer\n regarding his FOIA request. In the first e-mail, plaintiff asked the FOIA officer to confirm the\n office was performing an additional search for records. On February 19, 2020, plaintiff again\n inquired whether the office was going to perform an additional search and plaintiff reiterated\n his belief Springfield mistakenly treated his request as unduly burdensome under the law. On\n February 21, 2020, Springfield produced one record pertaining to Part 2 of his original request.\n¶8 On April 24, 2020, plaintiff filed his three-count complaint against Springfield. Plaintiff\n highlighted the aforementioned facts. Plaintiff further asserted Springfield waived reliance on\n the unduly burdensome objection in section 3(g) by failing to meet the statutory deadline for\n their response. In count I, plaintiff asserted Springfield violated FOIA by failing to produce\n the nonexempt public records sought by plaintiff. In count II, plaintiff asserted a claim for\n failure to perform an adequate search for responsive records. In count III, plaintiff argued\n Springfield willfully, intentionally, or otherwise acting in bad faith violated the FOIA. Plaintiff\n sought a declaration Springfield violated the FOIA, an order for Springfield to produce the\n requested records, attorney fees and costs, and civil penalties.\n¶9 A September 23, 2020, e-mail from plaintiff’s counsel to Springfield indicates Springfield\n had agreed to conduct the additional search and had produced records to plaintiff’s satisfaction.\n The e-mail does not establish on what date those events occurred.\n¶ 10 In February 2021, Springfield moved for summary judgment. In the motion, Springfield\n admitted plaintiff submitted a FOIA request on January 21, 2020, and Springfield responded\n to the request on or about February 4, 2020. Springfield acknowledged its response to the FOIA\n request did not occur within five business days but maintained the “delayed response was\n corrected as soon as it was discovered.” Springfield further admitted it agreed to conduct a\n search pursuant to plaintiff’s amended request and stated its production satisfied plaintiff.\n Springfield maintained “the issue of producing records in response to Plaintiff’s FOIA Request\n is now moot” and a civil penalty was inappropriate, as its conduct was not willful. Springfield’s\n written motion did not explicitly address attorney fees.\n¶ 11 In plaintiff’s response to the motion, plaintiff argued attorney fees were appropriate, as\n Springfield failed to timely and appropriately respond to his FOIA request.\n¶ 12 A hearing on defendant’s motion for summary judgment was held on April 8, 2021. As to\n the matter of attorney fees, the parties disputed whether such fees could be ordered in the\n absence of a court order in plaintiff’s favor. The trial court asked the parties to submit proposed\n orders to the court.\n¶ 13 On April 12, 2021, the trial court granted Springfield’s motion for summary judgment. The\n court found Springfield performed an adequate search for all records plaintiff requested. The\n court concluded plaintiff’s FOIA request as to “Part 2” was unduly burdensome. As to “Part\n 3,” the court found plaintiff’s request failed to reasonably identify the records sought. The\n court further found Springfield did not willfully or intentionally violate FOIA or otherwise act\n in bad faith in responding to plaintiff’s FOIA request.\n¶ 14 This appeal followed.\n\n\n\n\n -3-\n\f¶ 15 II. ANALYSIS\n¶ 16 A. The Trial Court Did Not Rule on Moot Claims\n¶ 17 Plaintiff initially argues the trial court erroneously ruled on claims made moot by\n Springfield’s production of the requested documents. Plaintiff, citing our decision in Roxana\n Community Unit School District No. 1 v. Environmental Protection Agency, 2013 IL App (4th)\n 120825, ¶¶ 41-42, 998 N.E.2d 961, maintains his first two claims in his complaint, claims\n asserting an inadequate search and production, became moot once Springfield provided the\n documents sought. Plaintiff argues the trial court thus erred in ruling on the propriety of\n Springfield’s search and production.\n¶ 18 Springfield counters the question of the adequacy of the search and production were not\n moot, as the complaint sought civil penalties. Springfield argued the propriety of its actions\n was relevant to that request. Springfield concludes the trial court thus did not err in finding the\n search and production proper.\n¶ 19 Illinois case law establishes once an agency provides the documents requested, even after\n a delay in violation of FOIA, the plaintiff’s “prayers seeking or concerning production are\n moot.” Id. ¶ 42. However, case law further establishes other issues may remain viable, such as\n a request for attorney fees under section 11(i) (5 ILCS 140/11(i) (West 2020)) and a request\n for a civil penalty under section 11(j) (id. § 11(j)). Here, in his complaint, plaintiff requested\n both attorney fees and a civil penalty. Under FOIA, a civil penalty shall be ordered “[i]f the\n court determines that a public body willfully and intentionally failed to comply with this Act,\n or otherwise acted in bad faith.” Id.\n¶ 20 Plaintiff argues his claim for civil penalties did not keep the propriety of the search and\n production from becoming moot. Plaintiff reasons he was not seeking a civil penalty based on\n Springfield’s search and production of documents but based on Springfield’s failure to respond\n timely to his request and Springfield’s failure to offer an opportunity to confer and narrow the\n request as required by section 3(g) (id. § 3(g)). Because of this, he concludes, the adequacy of\n the search and production was irrelevant.\n¶ 21 Given plaintiff’s request for civil penalties, we find no error in the trial court’s\n consideration of the adequacy of Springfield’s response to plaintiff’s initial request for records.\n Even though plaintiff asserts his arguments do not concern the search and production,\n Springfield’s conduct while addressing plaintiff’s FOIA requests was relevant to the trial\n court’s determination of whether Springfield acted in bad faith in not timely responding and in\n not offering to meet and confer.\n¶ 22 B. FOIA Plaintiffs Can Recover Attorney Fees Absent a Court Order\n¶ 23 Section 11(i) of FOIA provides for the award of attorney fees:\n “If a person seeking the right to inspect or receive a copy of a public record prevails in\n a proceeding under this Section, the court shall award such person reasonable attorney’s\n fees and costs. In determining what amount of attorney’s fees is reasonable, the court\n shall consider the degree to which the relief obtained relates to the relief sought. The\n changes contained in this subsection apply to an action filed on or after January 1, 2010\n ***.” (Emphasis added.) Id. § 11(i).\n¶ 24 Plaintiff argues the trial court erred by not ordering attorney fees under section 11(i), as the\n uncontested evidence establishes both Springfield violated FOIA by not complying with his\n request within the statutory deadlines and he “prevailed” in his case when Springfield produced\n\n -4-\n\f the records he sought. Plaintiff maintains under FOIA a court order is not a prerequisite to an\n attorney fees award and urges this court to accept the catalyst theory, which allows a plaintiff\n to recover attorney fees in the absence of a court order if the litigation caused the defendant to\n change its position. See Buckhannon Board & Care Home, Inc. v. West Virginia Department\n of Health & Human Resources, 532 U.S. 598, 601 (2001). In support of his argument, plaintiff\n relies heavily on the First District Appellate Court’s decision in Uptown People’s Law Center\n v. Department of Corrections, 2014 IL App (1st) 130161, 7 N.E.3d 102, and the Fifth District\n Appellate Court’s decision in Perdue v. Village of Tower Hill, 2015 IL App (5th) 140357-U.\n¶ 25 While Springfield acknowledges it failed to comply with the five-day deadline of FOIA,\n Springfield argues, however, attorney fees were not appropriate, as it had complied and\n produced the requested documents to plaintiff’s satisfaction before a court order had been\n entered. Springfield argues the more reasoned approach to the question of attorney fees under\n FOIA was adopted by the Second District Appellate Court in Rock River Times v. Rockford\n Public School District 205, 2012 IL App (2d) 110879, 977 N.E.2d 1216, which held a court\n order is a prerequisite before attorney fees could be ordered under FOIA.\n¶ 26 This question of whether FOIA authorizes an award of attorney fees in the absence of a\n court order in the plaintiff’s favor is a matter of statutory construction, an issue we review\n de novo. See Marsh v. Sandstone North, LLC, 2020 IL App (4th) 190314, ¶ 63, 179 N.E.3d\n 402 (observing matters of statutory construction are reviewed de novo). In construing a statute,\n our key task is determining legislative intent. Sangamon County Sheriff’s Department v.\n Illinois Human Rights Comm’n, 233 Ill. 2d 125, 136, 908 N.E.2d 39, 44 (2009). The statute’s\n language is itself the most reliable indicator of that intent. Vance v. Joyner, 2019 IL App (4th)\n 190136, ¶ 52, 146 N.E.3d 285. In construing the language of a statute, we consider the statute\n as a whole and do not construe words in isolation but in light of the other relevant provisions\n of the statute. Marsh, 2020 IL App (4th) 190314, ¶ 63. When the language of the statute is\n clear and unambiguous, we will not turn to other tools of statutory construction. Cinkus v.\n Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 217, 886 N.E.2d 1011,\n 1022 (2008). When a statute’s meaning is ambiguous, however, we may look beyond the\n language of the statute and consider the law’s purpose, the evils the law was meant to remedy,\n and the statute’s legislative history. Id.\n¶ 27 FOIA serves “the public policy of the State of Illinois that all persons are entitled to full\n and complete information regarding the affairs of government and the official acts and policies\n of those who represent them.” 5 ILCS 140/1 (West 2020). According to our legislature, this\n access “is necessary to enable people to fulfill their duties of discussing public issues fully and\n freely, making informed political judgments and monitoring government to ensure that it is\n being conducted in the public interest.” Id. To serve this policy, FOIA requires, with\n exceptions, all public bodies “make available to any person for inspection or copying all public\n records.” Id. § 3(a).\n¶ 28 Consistent with public policy, FOIA provides rules to insure governmental compliance\n with its terms. For example, FOIA requires a prompt response to a request for inspection or a\n copy of documents: “[e]ach public body shall, promptly, either comply with or deny a request\n for public records within 5 business days after its receipt *** unless the time for response is\n properly extended.” Id. § 3(d). FOIA further provides a means to encourage and enforce\n governmental compliance. For instance, a lack of a timely response denies the public body the\n right to “treat the request as unduly burdensome.” Id. In addition, when a person who has been\n\n -5-\n\f denied access to a public record by a public body, that individual “may file suit for injunctive\n or declaratory relief” and seek attorney fees and civil penalties from that public body. Id.\n § 11(a), (i), (j).\n¶ 29 In this case, the record establishes defendants failed to comply with the five-day statutory\n deadline. The record also shows some disagreement over Springfield’s use of the unduly\n burdensome exception. While the parties ultimately came to an agreement as to a more limited\n production and plaintiff was satisfied with that production, this production and agreement\n occurred after plaintiff filed his complaint for declaratory and injunctive relief. No court order\n directed Springfield’s compliance.\n¶ 30 Three Illinois district appellate courts, the First, Second, and Fifth, have ruled on the issue\n of whether a plaintiff can recover attorney fees under the most recent version of section 11(i).\n Springfield relies on the decision of the Second District in Rock River Times, while plaintiff\n urgers this court to accept the position taken by the First and Fifth Districts’ decisions in\n Uptown and Perdue.\n¶ 31 In Rock River Times, the Second District was the first to consider the meaning of the term\n “prevails” after section 11(i) was modified. In Rock River Times, the plaintiff newspaper filed\n a FOIA request for a copy of a letter written by a school principal to a school superintendent.\n Rock River Times, 2012 IL App (2d) 110879, ¶ 1. Initially, the school, relying on three\n exemptions, refused to release the letter. See id. ¶¶ 1, 4. After the denials, the newspaper filed\n suit under FOIA. Id. ¶ 1. While the case remained pending, the school produced the letter to\n the defendant and moved to dismiss the newspaper’s complaint as moot. Id. ¶ 10. In response,\n the newspaper urged the court to deny the school’s motion and filed a petition for a civil penalty\n and attorney fees. Id. ¶¶ 10-11. The school countered by filing a summary judgment motion,\n arguing the newspaper was not entitled to attorney fees, as it had not prevailed in its FOIA\n lawsuit. Id. ¶ 15. The trial court granted summary judgment to the school, granted the\n newspaper’s request for a civil penalty, and denied the request for attorney fees. Id. ¶ 1.\n¶ 32 On appeal, the Second District analyzed the history of FOIA’s attorney fees provision. The\n court observed the earlier version of section 11(i) allowed the trial court discretion to award\n attorney fees for a person who “substantially prevails” in a FOIA proceeding. Id. ¶ 30. That\n version provided if a “person seeking the right to inspect or receive a copy of a public record\n substantially prevails in a proceeding under this section, the court may award such person\n reasonable attorneys’ fees.” (Emphases added.) 5 ILCS 140/11(i) (West 2008). This earlier\n version mirrored language in the federal FOIA. Rock River Times, 2012 IL App (2d) 110879,\n ¶ 30 (citing 5 U.S.C. §§ 552(a)(4)(E), 552a(g)(3)(B) (1994)). The Second District observed\n earlier Illinois court decisions interpreted the “substantially prevails” provision to allow\n recovery of attorney fees when records were released after suit was filed and before a court\n order was entered. Id. (citing People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 202-03, 689\n N.E.2d 319 (1997), and Duncan Publishing, Inc. v. City of Chicago, 304 Ill. App. 3d 778, 787,\n 709 N.E.2d 1281 (1999)).\n¶ 33 The Rock River Times court emphasized the presumption is that an amendment is intended\n to change the law as it formerly existed rather than affirm it. Id. ¶ 38. The court then cited\n Black’s Law Dictionary’s definition of “prevail” as “ ‘[t]o obtain the relief sought in an action;\n to win a lawsuit’ ” (id. ¶ 40 (quoting Black’s Law Dictionary 1206 (7th ed. 1999))) and found\n the term unambiguous (id. ¶ 41). The court further reasoned, by deleting the word\n “substantially” from modifying “prevail,” “the legislature evinced an intent to require nothing\n\n -6-\n\f less than court-ordered relief in order for a party to be entitled to attorney fees under ***\n FOIA.” Id. ¶ 40. Because the school released the letter before the court ordered relief, the\n Second District held the newspaper was not a prevailing party. Id.\n¶ 34 In contrast, the First District, in Uptown, disagreed with Rock River Times and concluded\n a FOIA plaintiff can prevail and be entitled to attorney fees absent a court order. In Uptown,\n the plaintiff sought records from the Illinois Department of Corrections (IDOC) related to\n prison conditions. Uptown, 2014 IL App (1st) 130161, ¶ 3. After the IDOC did not respond to\n plaintiff’s request, the plaintiff filed suit seeking a declaration the IDOC violated FOIA, the\n production of the requested documents, and attorney fees. Id. The IDOC produced the records\n two months later. Id. ¶ 4. The trial court relied upon Rock River Times and concluded the\n plaintiff could not recover as the IDOC provided the records without a court order. Id. ¶ 5.\n¶ 35 On appeal, the First District, unlike the Second District, found the term “prevails”\n ambiguous, as “reasonable people could understand such language in multiple ways.” Id. ¶ 12.\n The court observed the plain language of the word, not defined in FOIA, could be read to\n include a court order as a prerequisite to recovery of attorney fees and to provide for situations\n when a plaintiff obtains the relief sought by starting a proceeding that leads to the government\n producing the requested records without a court order. Id. “Either interpretation would\n arguably further FOIA’s goals, albeit in varying degrees, of expeditiously disclosing\n information to the public and encouraging the public to seek judicial relief.” Id.\n¶ 36 The Uptown court then examined the history of the attorney fees provision. Id. ¶ 13. As the\n Second District did, the First District observed the previous version of section 11(i) permitted\n an award of plaintiff attorney fees when the plaintiff substantially prevailed, rather than when\n plaintiff “merely prevailed.” Id. (citing 5 ILCS 140/11(i) (West 2008)). Under that version, it\n was generally accepted a court order was not necessary before a plaintiff could recover attorney\n fees under FOIA. See id. (citing Stukel, 294 Ill. App. 3d at 201-03, and Duncan Publishing,\n Inc., 304 Ill. App. 3d at 780-82, 786).\n¶ 37 The First District then summarized the ramifications of the United States Supreme Court\n decision of Buckhannon, 532 U.S. 598. In Buckhannon, the Court determined that the term\n “prevailing party” in the Fair Housing Amendments Act of 1988 (42 U.S.C. § 3601 et seq.\n (2000)) and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq. (2000))\n did not include a plaintiff that achieved a desired result though the opponent’s “voluntary\n change of position.” Uptown, 2014 IL App (1st) 130161, ¶ 16 (citing Buckhannon, 532 U.S. at\n 605). After Buckhannon was decided, Congress amended the federal FOIA to prevent its\n holding to be applied to its provisions. Uptown, 2014 IL App (1st) 130161, ¶ 17.\n¶ 38 The First District observed the Illinois legislature then amended the Illinois FOIA attorney\n fees provision to its current state after Buckhannon and the changes to the federal law. Id. ¶ 18.\n The legislature removed the word “substantially” from “substantially prevails” and stripped\n the trial courts of their discretion in awarding attorney fees, making attorney fees mandatory\n when a FOIA plaintiff prevails. Id. (citing 5 ILCS 140/11(i) (West 2010)). The First District\n further examined the legislative history behind the modification and concluded that history\n “reflects an intention to be more favorable to individuals who make meritorious FOIA\n requests.” Id. For example, the First District emphasized statements of Senator Harmon,\n “ ‘There have been many court decisions that have defined the scope of FOIA, and we do not\n intend to overturn or otherwise interfere with these decisions, as I understand it.’ ” Id. (quoting\n\n\n -7-\n\f 96th Ill. Gen. Assem., Senate Proceedings, May 28, 2009, at 42 (statements of Senator\n Harmon)).\n¶ 39 The First District concluded “the modification was intended to ensure that successful\n plaintiffs could obtain attorney fees regardless of the extent to which they had prevailed, no\n matter how slight” and “increase the instances in which a plaintiff obtains attorney fees after\n receiving a requested document, not to decrease those instances.” Id. ¶ 20. The court further\n found, had the legislature “intended to change existing Illinois case law to make court-ordered\n relief a prerequisite to an award of attorney fees under FOIA, it would have done so through\n clear language.” Id.\n¶ 40 Most recently, the Fifth District addressed the same issue and sided with the First District.\n See Perdue, 2015 IL App (5th) 140357-U, ¶¶ 29-30. The Perdue court concluded the\n interpretation set forth in Uptown “is expansive and in keeping with a stated purpose of the\n FOIA—‘to operate openly and provide public records as expediently and efficiently as\n possible.’ ” Id. ¶ 29 (quoting 5 ILCS 140/1 (West 2012)). The Perdue court held “in order to\n ‘prevail’ in a FOIA suit, a court order is not required and a requester may be entitled to attorney\n fees if the requester prevails by obtaining the records after filing a suit.” Id. ¶ 30.\n¶ 41 Although this court had not yet considered the meaning of section 11(i)’s “prevails,” we\n have questioned the policy of allowing governmental bodies to skirt the requirements of FOIA\n and avoid having to pay attorney fees by producing records before a court order is entered. In\n Roxana, 2013 IL App (4th) 120825, ¶ 11, the plaintiffs, on November 7, 2011, submitted a\n FOIA request to the agency seeking copies of pending applications for certification as a\n pollution-control facility. The agency did not produce the applications or seek an extension.\n Id. Approximately two weeks later, the plaintiffs asked about the unanswered request. On\n February 1, 2012, the agency provided the requested records. Id. On March 2, 2012, the\n plaintiffs submitted two additional FOIA requests. Id. ¶ 13. “During the week of April 2, 2012,\n the Agency complied with the March 2012 FOIA requests.” Id. Between the date of the\n additional FOIA requests and the agency’s compliance, the plaintiffs filed a complaint on\n March 12, 2012, for declaratory and injunctive relief and attorney fees.\n¶ 42 The trial court granted summary judgment in the agency’s favor, and the plaintiffs\n appealed. Id. ¶ 26. In one of their arguments to affirm the summary judgment order in its favor,\n the defendants argued the plaintiffs were not entitled to the requested relief because the agency\n eventually complied. Id. ¶ 40. We summarized the defendants’ argument as follows and found\n it unpersuasive:\n “As we understand the import of defendants’ assertion, the Agency can\n (1) acknowledge receipt of plaintiffs’ FOIA request; (2) willfully ignore its statutory\n duty to either provide or deny the requested information within five business days or\n request an extension of time if it cannot comply with the five-day mandate; and (3) at\n its discretion or sometime before an impending civil action, provide the pertinent FOIA\n information, which negates plaintiffs’ request for relief.” Id.\n After finding this argument unpersuasive, we determined the plaintiffs’ request for attorney\n fees survived and reversed the summary judgment order. Id. ¶¶ 42, 59.\n¶ 43 Upon our review of the case law and the parties’ arguments, we find the position taken by\n the First and Fifth Districts more persuasive. We agree the term “prevails” is ambiguous. The\n Black’s Law Dictionary definition, the one relied upon by the Second District, reveals this\n ambiguity. “Prevail” is defined as “ ‘[t]o obtain the relief sought in an action; to win a\n\n -8-\n\f lawsuit.’ ” Rock River Times, 2012 IL App (2d) 110879, ¶ 40 (quoting Black’s Law Dictionary\n 1206 (7th ed. 1999)). Applying this definition, “the relief sought” in a FOIA action is the\n production of the requested documents. The production of said documents without a court\n order satisfies that part of the Black’s Law Dictionary’s definition of “prevail.” This ambiguity\n allows for consideration of the history of section 11(i). We find the First District’s\n interpretation of said history consistent with the stated purpose of FOIA.\n¶ 44 We further find Springfield’s remaining arguments unconvincing. For example,\n Springfield argues conditioning an award of attorney fees on the requester prevailing with a\n court order furthers the intent of FOIA by ensuring the requests are not frivolous in nature.\n There are, however, other safeguards protecting against frivolous lawsuits. Illinois Supreme\n Court Rule 137(a) (eff. Jan. 1, 2018) provides for the impositions of sanctions on any attorney\n who would do so. In addition, section 11(i) of FOIA does not permit attorneys all fees they\n seek. The trial court has discretion to award reasonable fees and not award fees for any part of\n the claim that is unsuccessful or frivolous: “[i]n determining what amount of attorney’s fees is\n reasonable, the court shall consider the degree to which the relief obtained relates to the relief\n sought.” 5 ILCS 140/11(i) (West 2020).\n¶ 45 Similarly unconvincing is Springfield’s argument regarding the legislative history of\n FOIA in that the comments relied upon in Uptown were taken out of context, as the legislators\n were discussing sweeping changes to FOIA. In particular, Springfield points to the comments\n by Senator Harmon as made in reference to the “House amendments” and not regarding the\n changes to section 11(i). Whether this is true or not is irrelevant, as we have given very little\n weight to the comments by the legislators. What is more convincing is the timing of the\n amendments following the Buckhannon opinion and the changes itself to the plain language of\n section 11(i), making attorney fees easier to obtain for successful FOIA complainants. We note\n Springfield identifies no legislative comment in the legislative history that supports its claim.\n¶ 46 Having found a favorable court finding unnecessary for a FOIA complainant to “prevail”\n in their suit against a governmental body, the issue turns on the relief to be granted in this case.\n The parties agree Springfield did not comply with the statutory deadline and did not produce\n documents to plaintiff’s satisfaction until after the lawsuit was filed. The record establishes the\n trial court did not hear arguments on the reasonableness of the fees requested but only argument\n as to the meaning of the word “prevail” before granting summary judgment against plaintiff.\n Under these circumstances, plaintiff is entitled to have his request for attorney fees heard. The\n extent to which what fees are reasonable under FOIA is within the trial court’s discretion. See\n id.\n¶ 47 In Roxana, when the issue of attorney fees remained viable after the requested remedies of\n the production of the documents was rendered moot, we reversed the summary judgment order\n and remanded for further proceedings to allow plaintiffs the opportunity to pursue their request\n for attorney fees. Roxana, 2013 IL App (4th) 120825, ¶¶ 42, 59. We will follow Roxana’s lead\n and do the same here. We note the only requested relief on appeal is the opportunity to be heard\n on attorney fees. We reverse the trial court’s grant of summary judgment in Springfield’s favor\n as to counts I and II and remand for further proceedings.\n\n\n\n\n -9-\n\f¶ 48 III. CONCLUSION\n¶ 49 We reverse the trial court’s order for summary judgment and remand.\n\n¶ 50 Reversed and remanded.\n\n\n\n\n - 10 -\n\f"} {"dedup_key":"2022 IL App (4th) 210378","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (4th) 210378","case_name":"Donley v. City of Springfield","court_level":"Appellate","appellate_district":"4th","year":2022,"county":"Sangamon","appellate_docket":"4-21-0378","circuit_docket":"20-CH-140","published":1,"authoring_justice":"Steigmann","statute":["FOIA"],"exemptions_cited":[],"public_body":"City of Springfield and the Springfield Police Department","requesting_party":"Robert Donley","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The court held that a FOIA requester who failed to provide necessary information to the public body to facilitate the disclosure of records is not entitled to attorney fees. The court concluded that the plaintiff's failure to cooperate with the public body's reasonable requests for information regarding his litigation status precluded him from prevailing in his FOIA lawsuit.","best_text_source":"Court Opinions - FOIA/Donley v. City of Springfield, 2022 IL App (4th) 210378.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:43.700683","site_category":"Fees & Burdensome Requests","date_decided":"2022-12-06","site_url":"/cases/2022%20IL%20App%20(4th)%20210378/","text_url":"/case-text/2022%20IL%20App%20(4th)%20210378.txt","full_text":" Digitally signed\n by Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2024.01.03\n 15:20:48 -06'00'\n\n\n\n Donley v. City of Springfield, 2022 IL App (4th) 210378\n\n\n\nAppellate Court ROBERT DONLEY, Plaintiff-Appellee and Cross-Appellant, v. THE\nCaption CITY OF SPRINGFIELD and THE SPRINGFIELD POLICE\n DEPARTMENT, Defendants-Appellants and Cross-Appellees.\n\n\n\n\nDistrict & No. Fourth District\n No. 4-21-0378\n\n\n\nFiled December 6, 2022\n\n\n\nDecision Under Appeal from the Circuit Court of Sangamon County, No. 20-CH-140;\nReview the Hon. Raylene Grischow, Judge, presiding.\n\n\n\nJudgment Reversed.\n\n\nCounsel on James Zerkle, Corporation Counsel, of Springfield (Kateah M.\nAppeal McMasters, Assistant Corporation Counsel, of counsel), for\n appellants.\n\n Matthew Topic, Josh Loevy, Merrick Wayne, and Shelley Geiszler, of\n Loevy & Loevy, of Chicago, for appellee.\n\f Panel JUSTICE STEIGMANN delivered the judgment of the court, with\n opinion.\n Justices Harris and Bridges ∗ concurred in the judgment and opinion.\n\n\n OPINION\n\n¶1 In August 2020, plaintiff, Robert Donley, an inmate in the custody of the Department of\n Corrections (DOC), filed a complaint for declaratory judgment and injunctive relief against\n defendants, the City of Springfield and the Springfield Police Department (hereinafter referred\n to collectively as Springfield), pursuant to the Freedom of Information Act (FOIA) (5 ILCS\n 140/1 et seq. (West 2018)). The complaint also sought civil penalties, attorney fees, and costs.\n While Donley’s complaint was pending, Springfield voluntarily provided Donley with some\n of the records he sought.\n¶2 In February 2021, Springfield filed a motion for summary judgment. In April 2021, the\n trial court granted summary judgment in favor of Springfield on all issues except for attorney\n fees, which the court reserved for additional briefing. In June 2021, the court awarded Donley\n attorney fees and costs, finding that he was the prevailing party.\n¶3 Springfield appeals, arguing, among other things, that the trial court erred by awarding\n Donley attorney fees. Donley cross-appeals, arguing, among other things, that the court (1) did\n not err by awarding attorney fees but (2) erred by awarding an amount less than what Donley\n sought in his fee petition.\n¶4 We agree with Springfield that the trial court erred by awarding any attorney fees to\n Donley. Accordingly, we reverse the trial court’s judgment.\n\n¶5 I. BACKGROUND\n¶6 A. Donley’s FOIA Requests\n¶7 In April 2020, Donley pro se submitted a FOIA request to Springfield that sought (1) police\n reports regarding two separate incidents that occurred while Donley was staying at a halfway\n house in Springfield, Illinois, (2) “Copies of all Police Reports an[d] Arrests made concerning\n all inmates in the Past 5 years that lived at [that] Halfway House,” (3) “a Complete list of all\n reports made in the other 4 Halfway Houses in the Past 5 years owned By Dave Kettlekamp\n just south of [that halfway house],” and (4) “any Laws, procedures, rules that Dave Kettlekamp\n and Springfield Parole Office has to follow in order to run [and] operate a Legal Halfway\n House in Springfield for inmates getting out of prison.”\n¶8 Later that month, Springfield provided to Donley records related to his first request (the\n two incidents at the halfway house while Donley was a resident there) but denied (1) requests\n two and three (records relating to other residents and incidents) pursuant to sections 7(1)(b),\n 7(1)(c), 7(1)(e-9), and 7(1)(e-10) of the FOIA (5 ILCS 140/7(1)(b), (c), (e-9), (e-10) (West\n 2020)) and (2) request four because the request was “vague and fail[ed] to reasonably describe\n\n ∗\n Justice George Bridges participated in this appeal but has since retired. Our supreme court has held\n that the departure of a judge prior to the filing date will not affect the validity of a decision so long as\n the remaining two judges concur. Proctor v. Upjohn Co., 175 Ill. 2d 394, 396 (1997).\n\n -2-\n\f a specific record or process at the Springfield Police Department.”\n\n¶9 B. Donley’s Complaint and the Motion for Summary Judgment\n¶ 10 In August 2020, Donley, now represented by counsel, filed a complaint against Springfield,\n alleging that Springfield failed to comply with his FOIA request. Specifically, Donley alleged\n that Springfield (1) failed to produce requested records, (2) failed to perform an adequate\n search for responsive records, and (3) willfully violated the FOIA. The complaint asked the\n trial court for declaratory relief, injunctive relief, civil penalties, and attorney fees and costs.\n¶ 11 In October 2020, Springfield filed an answer to defendant’s complaint, asserting that it\n properly denied Donley’s FOIA requests because (1) his second and third requests were\n exempt from disclosure under section 7(1) of the FOIA, (2) Springfield did not have responsive\n records to Donley’s fourth request, and (3) Springfield acted in good faith when it rejected\n Donley’s requests.\n¶ 12 In December 2020, Springfield e-mailed Donley records responsive to his second and third\n requests but not the fourth. In that e-mail chain Springfield wrote the following regarding its\n disclosure of the documents:\n “We respectfully disagree that our voluntary production of these records means that\n your client has prevailed in this lawsuit. Without repeating the entire content of our\n Answer and Affirmative Defenses, I briefly reiterate the City’s position that your client\n was not entitled to the requested police reports/law enforcement records. Again, we\n only produced these records after the filing of this lawsuit in an attempt to resolve this\n matter without further litigation, not as any kind of concession to the allegations within\n the lawsuit.”\n (We note that the e-mail chain does not contain any other information regarding Springfield’s\n reasoning for disclosing the documents.)\n¶ 13 In February 2021, Springfield moved for summary judgment, arguing that (1) the records\n responsive to Donley’s second and third requests were exempt from disclosure under section\n 7(1)(e-10) of the FOIA, (2) the fourth request failed to reasonably identify the records being\n sought, (3) because Springfield was not required to produce responsive records to the second,\n third, and fourth requests, Springfield was not required to perform an adequate search for\n responsive records, and (4) Springfield did not willfully or intentionally violate the FOIA.\n¶ 14 Donley filed a response to Springfield’s motion for summary judgment, arguing that (1) the\n issues of whether (a) the records were exempt and (b) Springfield’s search was adequate were\n moot after Springfield’s disclosure of the documents in December 2020, (2) “[t]here is no\n dispute that [Donley] is a prevailing party and is entitled to attorneys fees and costs,” and\n (3) Springfield willfully and intentionally or otherwise in bad faith violated the FOIA.\n¶ 15 Following an April 2021 hearing, the trial court granted Springfield’s motion for summary\n judgment, finding, among other things, that (1) Springfield did not violate the FOIA or\n otherwise act in bad faith by initially withholding the responsive records requested in Donley’s\n second and third requests, (2) those records were exempt from disclosure under section 7(1)(e-\n 10) of the FOIA, (3) Donley’s fourth request “failed to reasonably identify the records being\n sought,” and (4) “[s]ince [Donley] had to file a lawsuit in order for the records to be produced,\n he is arguably entitled to some fees and costs.” The court also reserved the issue of attorney\n fees and costs and requested additional briefing on that issue.\n\n\n -3-\n\f¶ 16 In May 2021, Donley filed a petition for attorney fees and costs, arguing that because he\n was the prevailing party, he was entitled to reasonable attorney fees. Springfield filed a\n response to Donley’s fee petition, arguing that Donley was not entitled to any attorney fees\n because he did not prevail. Alternatively, Springfield argued that if Donley was entitled to fees,\n the amount he was seeking was not reasonable.\n¶ 17 In June 2021, the trial court entered a written order awarding Donley attorney fees, albeit\n in an amount less than what Donley sought.\n¶ 18 This appeal and cross-appeal followed.\n\n¶ 19 II. ANALYSIS\n¶ 20 Springfield appeals, arguing, among other things, that the trial court erred by awarding\n Donley attorney fees. Donley cross-appeals, arguing, among other things, that the court (1) did\n not err by awarding attorney fees but (2) erred by awarding an amount less than what Donley\n sought in his fee petition.\n¶ 21 We agree with Springfield that the trial court erred by awarding any attorney fees to\n Donley. Accordingly, we reverse the trial court’s judgment.\n\n¶ 22 A. The Applicable Law and the Standard of Review\n¶ 23 1. The Standard of Review\n¶ 24 Appellate courts review grants of summary judgment de novo. International Ass’n of Fire\n Fighters, Local 50 v. City of Peoria, 2022 IL 127040, ¶ 11. “Whether a court has authority to\n grant attorney fees is a question of law, which we review de novo. *** However, a court’s\n decision whether to award authorized fees is reviewed for an abuse of discretion.” In re Estate\n of Martin, 2020 IL App (2d) 190140, ¶ 57.\n\n¶ 25 2. The FOIA and Fee Awards\n¶ 26 “The General Assembly has declared [the] FOIA’s underlying public policy to be that ‘all\n persons are entitled to full and complete information regarding the affairs of government and\n the official acts and policies of those who represent them as public officials and public\n employees consistent with the terms of this Act.’ ” Green v. Chicago Police Department, 2022\n IL 127229, ¶ 37 (quoting 5 ILCS 140/1 (West 2018)). Accordingly, all “public records are\n presumed to be open and accessible.” Id. ¶ 38.\n¶ 27 However, the FOIA also provides that certain documents are exempt from disclosure.\n Relevant to this case, section 7 of the FOIA provides the following:\n “(1) When a request is made to inspect or copy a public record that contains\n information that is exempt from disclosure under this Section, but also contains\n information that is not exempt from disclosure, the public body may elect to redact the\n information that is exempt. The public body shall make the remaining information\n available for inspection and copying. Subject to this requirement, the following shall\n be exempt from inspection and copying:\n ***\n (e-10) Law enforcement records of other persons requested by a person\n committed to the Department of Corrections, *** except as these records may be\n\n\n -4-\n\f relevant to the requester’s current or potential case or claim.” (Emphasis added.) 5\n ILCS 140/7(e-10) (West 2020).\n¶ 28 “[T]he appropriate time to measure whether a public record may be withheld is when the\n public body asserts the exemption and denies the request.” Green, 2022 IL 127229, ¶ 72.\n¶ 29 Regarding enforcement of the FOIA, section 11 provides the following for the enforcement\n of FOIA requests:\n “(a) Any person denied access to inspect or copy any public record by a public body\n may file suit for injunctive or declaratory relief.\n ***\n (i) If a person seeking the right to inspect or receive a copy of a public record\n prevails in a proceeding under this Section, the court shall award such person\n reasonable attorney’s fees and costs. In determining what amount of attorney’s fees\n is reasonable, the court shall consider the degree to which the relief obtained relates\n to the relief sought.” (Emphasis added.) 5 ILCS 140/11(i) (West 2020).\n¶ 30 Recently, this court discussed the meaning of “prevail” in section 11 and concluded that “a\n favorable court finding [is] unnecessary for a FOIA complainant to ‘prevail’ in their suit\n against a governmental body.” Martinez v. City of Springfield, 2022 IL App (4th) 210290, ¶ 46\n (citing favorably the First District’s holding in Uptown People’s Law Center v. Department of\n Corrections, 2014 IL App (1st) 130161, for its similar conclusion). Accordingly, a plaintiff’s\n obtaining the relief sought, even resulting from a defendant’s voluntary, mid-litigation\n production of documents, may entitle that plaintiff to an award of reasonable attorney fees. Id.\n ¶ 43.\n\n¶ 31 B. This Case\n¶ 32 Springfield concedes that a requester may prevail under the FOIA even if he does not obtain\n court-ordered relief, citing Martinez. Nonetheless, Springfield asserts that Donley did not\n prevail in this case because the documents Springfield provided to defendant, which were\n responsive to his requests number two and three, were initially exempt from disclosure. Only\n after Donley filed his lawsuit against Springfield was Springfield put on notice that the\n exemption upon which Springfield relied did not apply because Donley had a current or\n potential case or claim against Springfield.\n¶ 33 The nub of Springfield’s argument is that because it properly denied Donley’s request\n under section 7 of the FOIA (5 ILCS 140/7(e-10) (West 2020)) based on the information\n reasonably available to it at the time, Donley did not prevail within the meaning of the FOIA\n despite his ultimately receiving the documents. We agree.\n\n¶ 34 1. Springfield Properly Denied Donley’s Requests\n¶ 35 Springfield denied Donley’s requests for (1) “copies of police reports and arrests made\n concerning all inmates in the past 5 years” and (2) “a complete list of all reports in the other 4\n halfway houses in the past 5 years owned by Dave Kettlekamp just south of the [first] one at\n 1003 N 10th Street.” Because (1) those document requests were for police reports related to\n other individuals, which are “law enforcement records,” and (2) Donley was a prisoner in the\n DOC, those requested records are normally exempt under section 7 of the FOIA. See 5 ILCS\n\n\n -5-\n\f 140/7(1)(e-10) (West 2020). However, those records are not exempt if the “records may be\n relevant to the requester’s current or potential case or claim.” Id.\n¶ 36 Donley argued in the trial court that the records were not exempt because they were\n relevant to his claim in “Donley v. Hart, et al., 3:20-CV-03068-JES, filed in the U.S. District\n Court of the Central District of Illinois on March 11, 2020.” But, as Springfield points out,\n Donley did not provide any information about a pending lawsuit in his FOIA request to\n Springfield. Because Donley did not provide information about his federal case, Springfield\n had no reason to believe the records were not exempt—that is, Springfield had no reason to\n believe the exemption in section 7(1)(e-10) of the FOIA did not apply. Accordingly, based on\n the information known to Springfield at the time of the request (which was the information\n Donley chose to put in his request) (see Green, 2022 IL 127229, ¶ 72 (“[T]he appropriate time\n to measure whether a public record may be withheld is when the public body asserts the\n exemption and denies the request.”)), we conclude Springfield properly denied Donley’s\n requests.\n\n¶ 37 2. Because Springfield Properly Denied Donley’s Requests Donley Did Not\n Prevail by Later Obtaining the Documents\n¶ 38 Although Donley argues that he prevailed in the present case by obtaining the documents\n he sought after filing a lawsuit against Springfield, such a result, given this record, would be\n at odds with the purpose of the FOIA fee-shifting provision and “could lead to the absurd result\n of burdening the public body with the requester’s attorney fees even if the denial was proper\n when the agency made its decision.” Green, 2022 IL 127229, ¶ 72. Indeed, a plaintiff may\n prevail despite the lack of a favorable court finding, but that does not mean a plaintiff prevails\n despite an unfavorable court finding, as happened here. Nor does any case we are aware of\n stand for the proposition that a plaintiff who receives the documents he or she sought following\n litigation always prevails within the meaning of the FOIA.\n¶ 39 Donley argues that the merits of his requests are irrelevant to an award of attorney fees\n because the goal of FOIA is not to punish the public entity but to facilitate access to public\n records. We strongly disagree. In support of his argument, Donley cites Martinez, 2022 IL App\n (4th) 210290, ¶ 29, and Uptown, 2014 IL App (1st) 130161, ¶ 4, but those cases are\n distinguishable from the present case. Neither in Martinez nor in Uptown were the responsive\n documents determined to be initially exempt from disclosure—unlike this case. Martinez, 2022\n IL App (4th) 210290, ¶ 29; Uptown, 2014 IL App (1st) 130161, ¶ 4.\n¶ 40 To avoid absurd results, such as a plaintiff receiving attorney fees even if a denial was\n proper, prevailing under the FOIA requires more than the simple correlation of (1) a lawsuit\n against the public entity and (2) the document’s production. To prevail also requires (1) the\n lawsuit to have caused the production of the documents and (2) the lawsuit to have been\n reasonably necessary to obtain those documents.\n¶ 41 Under the prior version of the FOIA, for a plaintiff to be awarded attorney fees, the plaintiff\n had to be both “eligible” and “entitled” to the fees. Duncan Publishing, Inc. v. City of Chicago,\n 304 Ill. App. 3d 778, 787 (1999). Eligibility depended on whether the plaintiff “substantially”\n prevailed, and entitlement depended on whether “the record or records in question clearly were\n of significant interest to the general public and that the public body lacked any reasonable basis\n in law for withholding the record.” Id. at 786. In other words, under the prior version of the\n FOIA, a plaintiff could obtain responsive documents from the defendant and not be awarded\n\n -6-\n\f attorney fees, provided the defendant had a reasonable basis for withholding the records,\n despite the documents not being actually exempt from disclosure. Likewise, a plaintiff who\n obtained requested documents but whose request for the documents was properly denied would\n unquestionably not be entitled to a fee award.\n¶ 42 In Uptown, the First District discussed in detail the legislative history and judicial\n environment that preceded the 2010 amendment to section 11(i) of the FOIA. Uptown, 2014\n IL App (1st) 130161, ¶ 18. The First District observed that the legislature removed the word\n “substantially” from “substantially prevails” and stripped the trial courts of their discretion in\n awarding attorney fees, making attorney fees mandatory when a FOIA plaintiff prevails. Id.\n The court concluded that “the modification was intended to ensure that successful plaintiffs\n could obtain attorney fees regardless of the extent to which they had prevailed, no matter how\n slight” and “increase the instances in which a plaintiff obtains attorney fees after receiving a\n requested document, not to decrease those instances.” Id. ¶ 20. In Martinez, this court cited\n favorably the First District’s analysis. Martinez, 2022 IL App (4th) 210290, ¶ 43.\n¶ 43 We add to that discussion that not only did the legislature remove the word “substantially”\n from section 11(i), but it also removed the language requiring that the public entity lack any\n reasonable basis for rejecting a request in order to award attorney fees. Pub. Act 96-542, § 10\n (eff. Jan. 1, 2010) (amending 5 ILCS 140/11(i)). This change makes sense in light of the\n legislature’s “intention to be more favorable to individuals who make meritorious FOIA\n requests.” (Emphasis added.) Uptown, 2014 IL App (1st) 130161, ¶ 18. Effectively, the\n legislature guaranteed that plaintiffs who made a meritorious FOIA request would receive\n attorney fees even if the public entity was merely mistaken about the propriety of a claimed\n exemption. However, the removal of that language did not open the floodgates for any\n litigant—meritorious or not—to receive attorney fees. The legislature may have removed the\n question of entitlement from the attorney fees analysis but not the question of eligibility.\n¶ 44 Regarding the test for eligibility, the First District in Duncan stated the following:\n “[T]he inquiry is whether [(1)] the filing of suit was reasonably necessary to obtain the\n information and [(2)] a causal nexus exists between the action and the agency’s\n surrender of the information. *** A plaintiff will not be eligible for an award of fees if\n the production of records was independent of the lawsuit or if it was due to routine\n administrative proceeding.” Duncan, 304 Ill. App. 3d at 786.\n We note that this requirement is very similar to that of the “catalyst theory” for attorney fees,\n as defined in Martinez, which states “a plaintiff [can] recover attorney fees in the absence of a\n court order if the litigation caused the defendant to change its position.” Martinez, 2022 IL\n App (4th) 210290, ¶ 24 (citing Buckhannon Board & Care Home, Inc. v. West Virginia\n Department of Health & Human Resources, 532 U.S. 598, 601 (2001)).\n¶ 45 Accordingly, because we agree with the First District’s analysis in Uptown that the Illinois\n legislature changed the language of section 11(i) to make fee awards mandatory when\n appropriate, Uptown, 2014 IL App (1st) 130161, ¶ 20, we conclude that the test for eligibility\n for a fee award in Duncan is still good law absent clear statutory language to the contrary.\n¶ 46 In the present case, Donley’s lawsuit did not operate to change Springfield’s position on\n whether the records were exempt; instead, his lawsuit operated as an addendum to his previous\n request, alerting Springfield that he was entitled to the documents because they were relevant\n to his federal case. Without that information, Springfield could not have properly assessed\n whether the documents fit within the exemption of section 7(1)(e-10).\n\n -7-\n\f¶ 47 Further, in lieu of a lawsuit, Donley could have just as easily—perhaps even more easily—\n clarified his request by referencing his federal suit, which, we note, Springfield was not a party\n to. Because Donley’s suit did not cause Springfield to change its position on his prior request\n for records, he did not prevail within the meaning of the FOIA. Likewise, Donley did not\n prevail because his suit was not reasonably necessary to obtain the documents because his\n FOIA requests were not meritorious at the time he made them.\n¶ 48 Essentially, as Donley’s counsel conceded during oral arguments, Donley’s position is that\n Springfield was required to infer from the contents of Donley’s FOIA request that he met the\n exception to the exemption in section 7(1)(e-10) of the FOIA. We strongly disagree. Requiring\n a government entity to look beyond the information provided in a FOIA request would be\n inefficient and expensive, especially when the burden on the requester to simply include the\n pertinent information in his request is so minimal. (We note that had Donley included\n information regarding his federal case, this lawsuit would likely have been avoided.) Further,\n such a requirement would render the exemption in section 7(1)(e-10) meaningless because a\n prisoner’s document request always relates to some potential litigation.\n\n¶ 49 3. Awarding Fees Here Would Be Bad Policy\n¶ 50 We note that precedent exists to deny fee awards based on the purpose of the FOIA and\n section 11’s fee-shifting provision. See Uptown, 2014 IL App (1st) 130161, ¶ 23 (denying fee\n award for attorney acting pro se and citing Hamer v. Lentz, 132 Ill. 2d 49, 51 (1989)). In\n Hamer, the supreme court observed that the purpose of the fee-shifting provision was to\n encourage citizens to make sure FOIA was enforced, not to reward successful plaintiffs or\n punish the government. Hamer, 132 Ill. 2d at 62. Another goal the court identified was to avoid\n unnecessary litigation. Id. Further, the court wrote that the fear of abusive fee generation was\n not unreasonable if attorneys could proceed pro se and obtain fee awards. Id. For those reasons,\n the supreme court concluded that pro se litigants are not entitled to fee awards. Id. at 63.\n¶ 51 Those same policy concerns are important here. Donley did not need to file a lawsuit to\n obtain the documents. He merely needed to provide the information that Springfield required\n to make an informed decision as to whether to disclose the documents. Donley alone held the\n key to access the documents he requested, and because he chose not to disclose information,\n known only to him, regarding his federal litigation, Springfield was unaware of any relevance\n the requested documents could have had to Donley. Accordingly, Springfield correctly rejected\n his initial requests.\n¶ 52 We reject Donley’s call to penalize Springfield for its failure to scour country-wide court\n filings and examine each complaint, answer, and reply in a search for some nugget of litigation\n to support Donley’s request for law enforcement documents. Accordingly, Donley is not\n entitled to attorney fees.\n\n¶ 53 III. CONCLUSION\n¶ 54 For the reasons stated, we reverse the trial court’s judgment.\n\n¶ 55 Reversed.\n\n\n\n\n -8-\n\f"} {"dedup_key":"2022 IL App (4th) 210564-U","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (4th) 210564-U","case_name":"Trent Warren v. The City of Urbana","court_level":"Appellate","appellate_district":"4th","year":2022,"county":"Champaign","appellate_docket":"4-21-0564","circuit_docket":"21-MR-410","published":0,"authoring_justice":"Zenoff","statute":["FOIA"],"exemptions_cited":["7(1)(b)","7(1)(c)"],"public_body":"City of Urbana","requesting_party":"Trent Warren","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court affirmed the dismissal of the plaintiff's FOIA complaint, holding that the municipality properly redacted information under FOIA exemptions 7(1)(b) and 7(1)(c). The court further found that the City provided a sufficiently detailed factual basis for the redactions as required by section 9(b) of the Act.","best_text_source":"Court Opinions - FOIA/Warren v. The City of Urbana, 2022 IL App (4th) 210564-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:43.952876","site_category":"General Records Exemptions","date_decided":"2022-08-09","site_url":"/cases/2022%20IL%20App%20(4th)%20210564-U/","text_url":"/case-text/2022%20IL%20App%20(4th)%20210564-U.txt","full_text":" NOTICE 2022 IL App (4th) 210564-U FILED\nThis Order was filed under August 9, 2022\nSupreme Court Rule 23 and is NO. 4-21-0564 Carla Bender\nnot precedent except in the 4th District Appellate\nlimited circumstances allowed IN THE APPELLATE COURT Court, IL\nunder Rule 23(e)(1).\n OF ILLINOIS\n\n FOURTH DISTRICT\n\n\n TRENT WARREN, ) Appeal from the\n Plaintiff-Appellant, ) Circuit Court of\n v. ) Champaign County\n THE CITY OF URBANA, ) No. 21MR410\n Defendant-Appellee. )\n ) Honorable\n ) Anna M. Benjamin,\n ) Judge Presiding.\n\n\n\n JUSTICE ZENOFF delivered the judgment of the court.\n Justices DeArmond and Turner concurred in the judgment.\n\n ORDER\n¶1 Held: The appellate court affirmed, concluding the circuit court properly dismissed the\n plaintiff’s complaint because he failed to state a claim the defendant municipality\n violated the Freedom of Information Act when it redacted the plaintiff’s own\n information in the documents furnished to the plaintiff pursuant to his request.\n\n¶2 Plaintiff, Trent Warren, appeals from the Champaign County circuit court’s\n\njudgment dismissing Warren’s complaint under the Illinois Freedom of Information Act (FOIA)\n\n(5 ILCS 140/1 et seq. (West 2020)). On appeal, Warren argues the circuit court erroneously\n\ngranted the City of Urbana’s (the City) motion to dismiss his complaint because he stated a\n\nprima facie claim the City improperly redacted his own information in documents furnished to\n\nhim pursuant to his FOIA request. Warren further argues the City failed to provide a sufficiently\n\ndetailed factual basis for the redaction of Warren’s information as required by statute. The City\n\fresponds the circuit court’s dismissal of Warren’s complaint was proper because he (1) admitted\n\nthe information he requested was exempt and subject to redaction under sections 7(1)(b) and (c)\n\nof FOIA (5 ILCS 140/7(1)(b), (c) (West 2020)) and (2) failed to identify any applicable\n\nexceptions to the exemptions cited by the City. We agree with the City and affirm the circuit\n\ncourt’s judgment.\n\n¶3 I. BACKGROUND\n\n¶4 In January 2021, Warren, who is currently incarcerated at Pinckneyville\n\nCorrectional Center, filed a request for records from the City pursuant to FOIA. Specifically,\n\nWarren requested as follows: “(1) Any and All Public Records for Residential Property of the\n\nAddress 906 N. Gregory St. Urbana[,] Illinois, 61801, which include any foreclosures, Appraisal,\n\nNegotiated and Purchase Agreements. (2) A[n] updated [Area-Wide Records Management\n\nSystem (“ARMS”)] Report for the name of the requestor.”\n\n¶5 In February 2021, the City responded to Warren’s request, designating it as FOIA\n\nrequest number 2021-055. The City enclosed the records it found to be responsive to Warren’s\n\nrequest along with a letter stating that “some of the information in the requested records may\n\nhave been withheld or redacted.” The City cited sections 7(1)(b) and (c) of FOIA (5 ILCS\n\n140/7(1)(b), (c) (West 2020)), which exempt from disclosure “private” and “personal”\n\ninformation contained in public records, respectively.\n\n¶6 In the enclosed records, the City had redacted information from two of the three\n\npages, including (1) Warren’s home address; (2) Warren’s home telephone number; (3) Warren’s\n\ndate of birth; and (4) Warren’s mother’s name, home address, and home telephone number.\n\n¶7 In February 2021, and as pertains to the issues presented in this appeal, Warren\n\nfiled a request for review by the Public Access Counselor (PAC) pursuant to section 9.5 of\n\n\n\n -2-\n\fFOIA. See 5 ILCS 140/9.5 (West 2020) (providing for review of denied FOIA requests by the\n\nOffice of the Attorney General). Warren asserted the City “unlawfully redacted information that\n\nwas not suppose[d] to be redacted, and by doing so violate[d] *** FOIA.”\n\n¶8 In March 2021, the PAC responded to Warren’s request for review, indicating that\n\nbased on the materials submitted, and pursuant to section 9.5(f) of FOIA (5 ILCS 140/9.5(f)\n\n(West 2020)), no further inquiry into Warren’s request was warranted. Accordingly, the PAC\n\nstated Warren’s file would be closed and he was entitled to seek injunctive or declaratory relief\n\nunder section 11(a) of FOIA (see 5 ILCS 140/11(a) (West 2020)).\n\n¶9 In May 2021, Warren pro se filed the instant complaint, alleging the City violated\n\nFOIA when it redacted “the requestor’s home address” and “locations of the incidents that had\n\ntaken place” from the requested records. Specifically, Warren argued the records he requested\n\nwere unlawfully redacted because he consented to the disclosure of his own personal information\n\nunder section 7(1)(c) of FOIA (5 ILCS 140/7(1)(c) (West 2020)) and therefore the information\n\nwas not exempt from disclosure. Warren additionally argued the City failed to provide a\n\nsufficiently detailed factual basis to support its determination the information it redacted was\n\nexempt from disclosure as required by section 9(b) of FOIA (5 ILCS 140/9(b) (West 2020)).\n\nWarren requested the court enter an order: (1) finding the City violated FOIA, (2) requiring the\n\nCity provide “all of the information wrongly redacted,” and (3) requiring the City to pay not less\n\nthan $2500 nor more than $5000 in civil penalties per alleged violation pursuant to section 11(j)\n\nof FOIA (5 ILCS 140/11(j) (West 2020)).\n\n¶ 10 In July 2021, the City filed a combined motion to dismiss Warren’s complaint\n\npursuant to section 2-619.1 of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-\n\n619.1 (West 2020)). The City argued Warren’s complaint should be dismissed because he\n\n\n\n -3-\n\fadmitted the City redacted personal and private information from the records under exemptions\n\nenumerated in sections 7(1)(b) and (c) of FOIA (5 ILCS 140/7(1)(b), (c) (West 2020)) and\n\ntherefore failed to state a cause of action upon which relief could be granted.\n\n¶ 11 Following a hearing, the circuit court allowed the State’s motion to dismiss,\n\nconcluding the redacted portions of the documents constituted private or personal information\n\nwhich was exempt from inspection and copying. The court found Warren’s argument regarding\n\nthe fact it was his own information was “not listed within the statute or any other relevant\n\nauthority,” and he had not alleged sufficient facts to support a claim the City violated FOIA.\n\n¶ 12 This appeal followed.\n\n¶ 13 II. ANALYSIS\n\n¶ 14 On appeal, Warren argues the circuit court erroneously allowed the City’s motion\n\nto dismiss because he stated a prima facie claim the City improperly redacted his own\n\ninformation in the documents furnished to him pursuant to his FOIA request. Specifically,\n\nWarren argues the City unlawfully redacted (1) his five addresses on file, (2) the “locations of\n\nincidents,” and (3) his date of birth. Warren also argues the City failed to provide him a detailed\n\nfactual basis for the redaction of his information as required by section 9(b) of FOIA (5 ILCS\n\n140/9(b) (West 2020)). The City argues the circuit court’s dismissal of Warren’s complaint was\n\nproper because he admitted the information he requested was exempt and subject to redaction\n\nand he identified no applicable exception to that exemption for his own information. We agree\n\nwith the City and affirm the circuit court’s judgment.\n\n¶ 15 A. Applicable Law\n\n¶ 16 A motion under section 2-619.1 of the Procedure Code allows a party to “combine\n\na section 2-615 motion to dismiss based upon a plaintiff’s substantially insufficient pleadings\n\n\n\n -4-\n\fwith a section 2-619 motion to dismiss based upon certain defects or defenses.” Edelman, Combs\n\n& Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156, 164, 788 N.E.2d 740, 747 (2003).\n\nOn appeal, this court reviews the circuit court’s dismissal of a complaint pursuant to section 2-\n\n619.1 de novo. Morris v. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 402, 911 N.E.2d\n\n1049, 1052 (2009).\n\n¶ 17 In Illinois, FOIA governs the inspection of public records. 5 ILCS 140/1.2 (West\n\n2020) (“All records in the custody or possession of a public body are presumed to be open to\n\ninspection or copying.”). Unless subject to exemption, “[e]ach public body shall make available\n\nto any person for inspection or copying all public records.” 5 ILCS 140/3(a) (West 2020). As\n\nrelevant to this appeal, section 7(1) provides as follows:\n\n “(1) When a request is made to inspect or copy a public record that\n\n contains information that is exempt from disclosure under this Section, but also\n\n contains information that is not exempt from disclosure, the public body may\n\n elect to redact the information that is exempt. The public body shall make the\n\n remaining information available for inspection and copying. Subject to this\n\n requirement, the following shall be exempt from inspection and copying:\n\n\n ***\n\n\n (b) Private information, unless disclosure is required by another\n\n provision of this Act, a State or federal law, or a court order.\n\n\n ***\n\n\n (c) Personal information contained within public records, the\n\n disclosure of which would constitute a clearly unwarranted invasion of personal\n\n\n -5-\n\f privacy, unless the disclosure is consented to in writing by the individual subjects\n\n of the information. ‘Unwarranted invasion of personal privacy’ means the\n\n disclosure of information that is highly personal or objectionable to a reasonable\n\n person and in which the subject’s right to privacy outweighs any legitimate public\n\n interest in obtaining the information.” 5 ILCS 140/7(1)(b), (c) (West 2020).\n\n“Private information” includes “unique identifiers, including a person’s *** home or personal\n\ntelephone numbers.” 5 ILCS 140/2(c-5) (West 2020). “Private information” also includes “home\n\naddress[es] ***, except as otherwise provided by law or when compiled without possibility of\n\nattribution to any person.” 5 ILCS 140/2(c-5) (West 2020).\n\n¶ 18 “When a public body receives a proper request for information, it must comply\n\nwith that request unless one of the narrow statutory exemptions applies.” Lieber v. Board of\n\nTrustees of Southern Illinois University, 176 Ill. 2d 401, 408 (1997). “In the event a public body\n\nasserts that a record is exempt from such disclosure, the public body bears the burden of proving\n\nby clear and convincing evidence that the record is exempt.” Mancini Law Group, P.C. v.\n\nSchaumburg Police Department, 2021 IL 126675 ¶ 16. “Where the public body claims that a\n\nrequested document falls within one of these specifically enumerated categories and is able to\n\nprove that claim, no further inquiry by the court is necessary.” Lieber, 176 Ill. 2d at 408.\n\n¶ 19 B. This Case\n\n¶ 20 First, we agree with the City that Warren has forfeited any argument the City\n\nunlawfully redacted his date of birth by failing to raise this issue before the circuit court. In his\n\ncomplaint, Warren did not challenge the City’s redaction of his date of birth or his mother’s\n\ninformation. Warren’s complaint referenced only the City’s redaction of “the requestor’s home\n\naddress” and “locations of the incidents that had taken place.” Accordingly, Warren’s argument\n\n\n\n -6-\n\fregarding his date of birth is forfeited and we decline to consider it. See Enbridge Pipeline\n\n(Illinois), LLC v. Hoke, 2019 IL App (4th) 150544-B, ¶ 38 (“Issues not raised before the trial\n\ncourt are deemed forfeited and may not be raised for the first time on appeal.”). Warren does not\n\nchallenge the redaction of his phone number or his mother’s information on appeal.\n\n¶ 21 Turning to the merits, here, Warren argues that by submitting a written FOIA\n\nrequest for records concerning his own information, he necessarily consented to the disclosure of\n\nany information pertaining to him pursuant to section 7(1)(c) of FOIA (5 ILCS 140/7(1)(c) (West\n\n2020)). By Warren’s logic, in consenting to its disclosure, this information was no longer\n\nexempt. Therefore, the City’s redaction of nonexempt information was a violation of its\n\nobligation to make the requested records available for inspection and copying. Warren also\n\nargues his home address did not constitute private information because it could be “compiled\n\nwithout possibility of attribution to any person.” 5 ILCS 140/2(c-5) (West 2020).\n\n¶ 22 Warren’s argument that section 7(1)(c) provided an exception to the exemption of\n\nhis home addresses and “locations of incidents” is incorrect. While we acknowledge Warren’s\n\nhome address could also be considered “personal information” under section 7(1)(c), the\n\nlegislature specifically included home addresses under the definition of “private” information\n\nunder section 7(1)(b). See 5 ILCS 140/2(c-5) (West 2020). The only exception provided by the\n\nlegislature for this exemption is in cases where “disclosure is required by another provision of\n\nthis Act, a State or federal law, or a court order.” (Emphasis added.) 5 ILCS 140/7(1)(b) (2020).\n\nWarren has not identified any statute or court order which would require the City to disclose his\n\nprivate information under these circumstances. We agree with the circuit court the City proved\n\nthat Warren’s home address constituted private information, and therefore “no further inquiry by\n\nthe court [was] necessary.” Lieber, 176 Ill. 2d at 408.\n\n\n\n -7-\n\f¶ 23 Further, we agree with the City that Warren’s home address did not fall under the\n\nexception in section 2(c-5) for home addresses that can be “compiled without possibility of\n\nattribution to any person.” 5 ILCS 140/2(c-5) (West 2020). The record shows the documents\n\nfurnished to Warren contained his full name at the top of the page. Accordingly, there is no\n\npossibility that the information redacted following the fields stating, “HOME ADDRESS:” and\n\n“OTHER ADDRESS:”—when viewed in context—could be compiled “without possibility of\n\nattribution” to Warren. The record also reveals the City did not, in fact, redact the locations of\n\nincidents unless they were also Warren’s home addresses. Accordingly, Warren’s argument\n\npertaining to the redaction of that information was likewise exempt from inspection and not\n\nsubject to the section 2(c-5) exception.\n\n¶ 24 Finally, Warren argues the City failed to justify its redaction of the information\n\ncontained in Warren’s requested records with a sufficiently detailed factual basis as required by\n\nsection 9(b) of FOIA (5 ILCS 140/9(b) (West 2020)), which states as follows:\n\n “When a request for public records is denied on the grounds that the\n\n records are exempt under Section 7 of this Act, the notice of denial shall specify\n\n the exemption claimed to authorize the denial and the specific reasons for the\n\n denial, including a detailed factual basis and a citation to supporting legal\n\n authority.” 5 ILCS 140/9(b) (West 2020).\n\n¶ 25 We find the factual basis provided by the City justifying its redaction of the\n\ninformation contained in Warren’s requested records was sufficiently detailed and therefore\n\ncomplied with the statute. The City’s response to Warren’s request for records specifically\n\nadvised him certain information had been redacted under both sections 7(1)(b) and 7(1)(c) of\n\nFOIA. This included the definitions of both “private” and “personal” information and citations to\n\n\n\n -8-\n\fthe relevant sections of the statute. Warren does not explain what other information the City was\n\nrequired to provide, and we find none. We therefore conclude the City’s factual basis complied\n\nwith section 9(b).\n\n¶ 26 Because Warren failed to allege sufficient facts to support a prima facie claim the\n\nCity violated FOIA and admitted the allegedly unlawfully redacted information was subject to\n\nstatutory exemptions, the circuit court properly allowed the City’s motion to dismiss Warren’s\n\ncomplaint. We therefore affirm the circuit court’s judgment.\n\n¶ 27 III. CONCLUSION\n\n¶ 28 For the reasons stated, consistent with Illinois Supreme Court Rule 23(b) (eff. Jan.\n\n1, 2021), we affirm the trial court’s judgment.\n\n¶ 29 Affirmed.\n\n\n\n\n -9-\n\f"} {"dedup_key":"2022 IL App (4th) 210667-U","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (4th) 210667-U","case_name":"Trent Jacob Warren v. The Department of Corrections","court_level":"Appellate","appellate_district":"4th","year":2022,"county":"Sangamon","appellate_docket":"4-21-0667","circuit_docket":"21MR26","published":0,"authoring_justice":"Zenoff","statute":["FOIA"],"exemptions_cited":["3(g)"],"public_body":"Illinois Department of Corrections","requesting_party":"Trent Jacob Warren","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court affirmed the dismissal of the plaintiff's FOIA complaint, holding that the Department of Corrections properly denied the requests as unduly burdensome under section 3(g) because the records had already been provided to the plaintiff. The court concluded the plaintiff failed to state a cause of action for a FOIA violation.","best_text_source":"Court Opinions - FOIA/Warren v. The Department of Corrections, 2022 IL App (4th) 210667-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:43.952950","site_category":"Fees & Burdensome Requests","date_decided":"2022-11-14","site_url":"/cases/2022%20IL%20App%20(4th)%20210667-U/","text_url":"/case-text/2022%20IL%20App%20(4th)%20210667-U.txt","full_text":" NOTICE 2022 IL App (4th) 210667-U\nThis Order was filed under FILED\nSupreme Court Rule 23 and is November 14, 2022\n NO. 4-21-0667\nnot precedent except in the Carla Bender\nlimited circumstances allowed 4th District Appellate\n IN THE APPELLATE COURT\nunder Rule 23(e)(1).\n Court, IL\n\n OF ILLINOIS\n\n FOURTH DISTRICT\n\n\n TRENT JACOB WARREN, ) Appeal from the\n Plaintiff-Appellant, ) Circuit Court of\n v. ) Sangamon County\n THE DEPARTMENT OF CORRECTIONS, ) No. 21MR26\n Defendant-Appellee. )\n ) Honorable\n ) Christopher G. Perrin,\n ) Judge Presiding.\n\n\n\n JUSTICE ZENOFF delivered the judgment of the court.\n Justices DeArmond and Turner concurred in the judgment.\n\n ORDER\n ¶1 Held: The appellate court affirmed, concluding the circuit court properly dismissed the\n plaintiff’s complaint because he failed to state a cause of action under the Illinois\n Freedom of Information Act.\n\n ¶2 Plaintiff, Trent Jacob Warren, appeals from the Sangamon County circuit court’s\n\n dismissal of his complaint under the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/11\n\n (West 2020)), which alleged defendant, the Illinois Department of Corrections (Department),\n\n improperly denied several of his requests for public records. Warren argues the circuit court\n\n erroneously dismissed his complaint because it sufficiently stated a claim the Department\n\n violated FOIA in denying his requests for records. The Department argues the court properly\n\n allowed its motion to dismiss Warren’s complaint. We affirm the circuit court’s judgment.\n\n ¶3 I. BACKGROUND\n\f¶4 A. Warren’s FOIA Requests\n\n¶5 Warren is an individual residing at the Pinckneyville Correctional Center\n\n(Pinckneyville) in the custody of the Department. Between October 2019 and July 2020, Warren\n\nfiled six requests for records with the Department, which we summarize chronologically below.\n\n¶6 In October 2019, Warren filed a FOIA request with the Department seeking\n\ntemperature monitoring records from the chief engineer’s office of Lawrence Correctional\n\nCenter (Lawrence) for “every hour” for two housing units at Lawrence. Warren specifically\n\nrequested “computer printouts showing the temperature at each building for every hour of each\n\nday.” In response, the Department notified Warren it did not “maintain or possess records\n\nresponsive” to his request.\n\n¶7 On March 6, 2020, Warren requested two reports from Pinckneyville.\n\nSpecifically, Warren requested (1) monthly “health and safety” reports from the years 2019 to\n\n2020 and (2) “building inspection reports” from 2019. The Department denied respondent’s\n\nrequest, asserting the materials requested were exempt from disclosure under FOIA because they\n\nwere prepared for internal audits of public bodies.\n\n¶8 On April 21, 2020, Warren requested (1) copies of all FOIA requests denied in\n\n2020, (2) “information of why psychotropic meds Effexor was banned from [the Department]\n\nand its short term and long term side effects,” and (3) a copy of his current FOIA request. In\n\nresponse, the Department asked Warren to clarify whether he sought copies of the denials of his\n\nown FOIA requests or the denials of all requests that occurred in 2020. The Department further\n\nrequested Warren to narrow the time period to a specific range to facilitate locating the requested\n\nrecords. The Department then explained Warren’s “general request” for “information” on\n\n\n\n\n -2-\n\fEffexor did not reasonably identify a public record but provided Warren a copy of his current\n\nFOIA request.\n\n¶9 On June 11, 2020, Warren requested records from Menard Correctional Center\n\n(Menard). Warren requested Menard’s (1) monthly health and sanitation reports for 2017, April\n\n2020, and May 2020 and (2) copies of the denials of his own FOIA requests from 2020, the\n\noriginals of those requests, and the original of his current request. The Department provided\n\nWarren copies of his FOIA requests from 2020 with the exception of four requests which it had\n\nalready sent previously. The Department did not provide Warren with the denials of those\n\nrequests, explaining it had already sent Warren those documents. The Department further denied\n\nWarren’s request for the health, safety, and sanitation records from Menard, asserting they were\n\nexempt from disclosure under FOIA because they were materials prepared for internal audits of\n\npublic bodies.\n\n¶ 10 In July 2020, Warren requested (1) all records and staff operating procedures and\n\npolicies regarding inmate property, specifically protocols for when an inmate is unable to pack\n\nhis own property and (2) copies of the Department’s denials of two of his previous FOIA\n\nrequests. In response to the first request, the Department provided Warren with a Pinckneyville\n\ninstitutional directive titled, “Use and Control of Offender Storage Boxes.” The Department did\n\nnot provide the relevant administrative directive, asserting the record was exempt from\n\ndisclosure under FOIA because it was available to Warren in the correctional center library. The\n\nDepartment denied Warren’s second request because it had previously mailed him copies of\n\nthose documents.\n\n¶ 11 Also in July 2020, Warren requested all “protocol[s] and policies regarding video\n\ncamera footage” from Department prison cameras; rules and protocols regarding maintenance,\n\n\n\n\n -3-\n\fretention, and disposal of video camera footage; and the parties responsible for keeping those\n\nrecords. Warren additionally requested information regarding “rules and staff protocol[s] of\n\ngrievances and grievance officer routine[s] regarding investigation of their complaint of\n\ngrievances.” The Department responded that (1) it did not maintain or possess records responsive\n\nto the former request and (2) the latter request did not reasonably identify a public record.\n\n¶ 12 B. Requests for Review\n\n¶ 13 In each of its responses to Warren’s six aforementioned FOIA requests, the\n\nDepartment stated Warren could seek review of each denied request by filing an action in court\n\nunder section 11 of FOIA (5 ILCS 140/11 (West 2020)), or by requesting review from the Public\n\nAccess Counselor (PAC) under section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)). The\n\nDepartment indicated respondent was required to attach a copy of his original FOIA request and\n\nthe corresponding denial letter in a request for review by the PAC.\n\n¶ 14 1. PAC Review and Complaint\n\n¶ 15 Warren sought PAC review of each of the Department’s denials of his requests\n\nfor records. The PAC declined to review Warren’s March 2020 and two July 2020 FOIA\n\nrequests because he failed to include copies of his underlying FOIA requests within the 60-day\n\nperiod to submit his requests for PAC review, citing section 9.5(a) of FOIA (5 ILCS 140/9.5(a)\n\n(West 2020)). The PAC determined that no further inquiry was warranted regarding the other\n\nthree requests, indicated it would resolve the requests by means other than a binding opinion, and\n\nclosed the file.\n\n¶ 16 In January 2021, Warren filed the instant complaint, alleging the Department\n\nimproperly denied his six FOIA requests. Warren sought (1) a declaration the Department\n\nviolated FOIA and otherwise acted in bad faith by denying his FOIA requests, (2) an order\n\n\n\n\n -4-\n\fdirecting the Department to provide all requested documents, and (3) civil penalties, attorney\n\nfees, and court costs. Warren attached to his complaint the copies of his FOIA requests, the\n\nDepartment’s responses, his requests for PAC review, the PAC’s responses, and a “Physical\n\nPlant Service Work Order Log” that appeared to have been obtained from the Department.\n\n¶ 17 2. Department’s Motion to Dismiss\n\n¶ 18 In July 2021, the Department filed a combined motion to dismiss Warren’s\n\ncomplaint under section 2-619.1 of the Code of Civil Procedure (Procedure Code) (735 ILCS\n\n5/2-619.1 (West 2020)).\n\n¶ 19 The Department argued the circuit court should dismiss two claims under section\n\n2-615 of the Procedure Code (735 ILCS 5/2-615 (West 2020)), namely (1) his request for\n\n“copies of all denial[s] of FOIA requests for 2020” (count II) and (2) the Department’s\n\nadministrative directive on the storage of inmate property (count I). The Department argued\n\nWarren failed to state a claim the Department improperly denied these requests because (1) the\n\nformer request was overbroad, vague, and did not reasonably identify a public record and (2) the\n\nlatter requested materials were exempt from disclosure as they were available to Warren in the\n\nPinckneyville library.\n\n¶ 20 The Department argued the circuit court should dismiss the remaining claims\n\nunder section 2-619 of the Procedure Code (735 ILCS 5/2-619 (West 2020)). Specifically, the\n\nDepartment argued both Warren’s inquiries for information on Effexor (count II) and “rules and\n\nstaff protocols” governing grievances (count IV) did not reasonably identify public records. The\n\nDepartment further argued the requested video camera footage (count IV) and temperature\n\nmonitoring records (count VI) were exempt from disclosure because the Department did not\n\nmaintain such records. As to the building inspection reports (count V) and health, sanitation, and\n\n\n\n\n -5-\n\fsafety reports (counts III and V), the Department argued those materials were exempt from\n\ndisclosure because they were prepared for use in internal audits. Finally, the Department argued\n\nWarren’s requests for copies of its denials of Warren’s previous FOIA requests (counts I and III)\n\nwere unduly burdensome because the Department previously provided these documents to\n\nWarren when the requests were denied.\n\n¶ 21 In October 2021, following a hearing, the circuit court entered a written order\n\nallowing the Department’s motion to dismiss for the reasons stated in the memorandum attached\n\nto the Department’s motion.\n\n¶ 22 This appeal followed.\n\n¶ 23 II. ANALYSIS\n\n¶ 24 On appeal, Warren argues the circuit court erroneously dismissed his complaint\n\nbecause it sufficiently stated a claim the Department violated FOIA in denying his requests for\n\nrecords. The Department argues the circuit court’s dismissal was proper. We agree with the\n\nDepartment and affirm the circuit court’s judgment.\n\n¶ 25 A. Applicable Law\n\n¶ 26 A motion under section 2-619.1 of the Procedure Code allows a party to “combine\n\na section 2-615 motion to dismiss based upon a plaintiff’s substantially insufficient pleadings\n\nwith a section 2-619 motion to dismiss based upon certain defects or defenses.” Edelman, Combs\n\n& Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156, 164 (2003). On appeal, this court\n\nreviews the circuit court's dismissal of a complaint pursuant to section 2-619.1 de novo. Morris\n\nv. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 402 (2009).\n\n¶ 27 In Illinois, FOIA governs the inspection of public records. 5 ILCS 140/1.2 (West\n\n2020) (“All records in the custody or possession of a public body are presumed to be open to\n\n\n\n\n -6-\n\finspection or copying.”). Unless subject to exemption, “[e]ach public body shall make available\n\nto any person for inspection or copying all public records.” 5 ILCS 140/3(a) (West 2020). A\n\nFOIA request must “reasonably identify a public record and not general data, information or\n\nstatistics.” Chicago Tribune Co. v. Department of Financial and Professional Regulation, 2014\n\nIL App (4th) 130427, ¶ 33. FOIA does not create an independent duty upon a public body to\n\nmaintain or prepare a public record that it is not already legally required to keep, and “[t]he\n\nnonexistence of requested documents is a cognizable affirmative defense” to a FOIA claim.\n\nBarner v. Fairburn, 2019 IL App (3d) 180742, ¶ 12.\n\n¶ 28 “When a public body receives a proper request for information, it must comply\n\nwith that request unless one of the narrow statutory exemptions applies.” Lieber v. Board of\n\nTrustees of Southern Illinois University, 176 Ill. 2d 401, 408 (1997). “In the event a public body\n\nasserts that a record is exempt from such disclosure, the public body bears the burden of proving\n\nby clear and convincing evidence that the record is exempt.” Mancini Law Group, P.C. v.\n\nSchaumburg Police Department, 2021 IL 126675 ¶ 16. “Where the public body claims that a\n\nrequested document falls within one of these specifically enumerated categories and is able to\n\nprove that claim, no further inquiry by the court is necessary.” Lieber, 176 Ill. 2d at 408.\n\n¶ 29 FOIA provides a plethora of exemptions to a public body’s duty to make certain\n\nrecords available for copying. See generally 5 ILCS 140/7(1)(a)-(mm) (West 2020). As relevant\n\nto the issues presented in this appeal, FOIA specifically exempts from disclosure “materials\n\nprepared or compiled with respect to internal audits of public bodies” (5 ILCS 140/7(1)(m)\n\n(West 2020)) and “records requested by persons committed to the Department of Corrections\n\n*** if those materials are available in the library of the correctional *** facility ***where the\n\ninmate is confined” (5 ILCS 140/7(1)(e-5) (West 2020)). Additionally, section 3(g) of FOIA\n\n\n\n\n -7-\n\fprovides, “Requests calling for all records falling within a category shall be complied with unless\n\ncompliance with the request would be unduly burdensome for the complying public body and\n\nthere is no way to narrow the request and the burden on the public body outweighs the public\n\ninterest in the information.” (Emphasis added.) 5 ILCS/140/3(g) (West 2020).\n\n¶ 30 B. This Case\n\n¶ 31 Here, Warren claims the Department failed to show each of the six denials of his\n\nFOIA requests were based on a valid exemption and therefore violated its duty to make the\n\nrequested records available for copying under FOIA. We address each of Warren’s claims in\n\nrelation to the Department’s asserted rationale for denial.\n\n¶ 32 1. Records the Department Does Not Possess\n\n¶ 33 Warren argues the Department improperly denied his requests for “protocol[s]\n\nand policies regarding video camera footage” (count IV) and temperature monitoring records\n\n(count VI). The Department argues those materials were exempt from disclosure because the\n\nDepartment did not possess or maintain such records. We agree with the Department.\n\n¶ 34 a. Surveillance Footage Protocols\n\n¶ 35 In its motion to dismiss, the Department argued it did not possess records\n\nresponsive to the request for the policies regarding video camera footage. Attached to the motion\n\nwas an affidavit from the Department’s assistant legal counsel, who averred he contacted the\n\nDepartment’s operations unit, which maintains the surveillance systems in Department facilities,\n\nto inquire about the maintenance of surveillance footage. The assistant legal counsel averred the\n\noperations unit informed him there was no Department procedure for the maintenance of\n\nsurveillance footage and the Department did not possess any records responsive to Warren’s\n\nrequest.\n\n\n\n\n -8-\n\f¶ 36 Warren nonetheless asserts the Department does, in fact, possess responsive\n\nrecords and failed to conduct an adequate search, as evidenced by (1) “20-IL-AD 5.1-104” of the\n\nIllinois Administrative Code and (2) a document from the Department listing “Staff Operating\n\nProcedures/Policies” as a category of records the Department shall immediately disclose upon\n\nrequest under section 3.5(a) of FOIA (see 5 ILCS 140/3.5(a) (West 2020)). Although there is no\n\nsuch provision in the Administrative Code, the Department suggests Warren may be referring to\n\nadministrative directive No. 05.01.104 (eff. Apr. 1, 2021), which relates to the Department’s\n\nintent to “maintain systems for strict accountability of all cameras, digital media and related\n\nequipment to ensure that such materials are only issued to or accessed by authorized personnel,\n\nand that all cameras and related equipment are properly and securely stored when not in use.”\n\n¶ 37 While we agree with Warren the administrative directive may have been\n\nresponsive to his FOIA request, we nonetheless find the Department did not violate FOIA\n\nbecause it has demonstrated the administrative directive was exempt from disclosure under\n\nsection 7(1)(e-5). 5 ILCS 140/7(1)(e-5) (West 2020) (exempting “records requested by persons\n\ncommitted to the Department of Corrections *** if those materials are available in the library of\n\nthe correctional *** facility *** where the inmate is confined”). To the extent Warren refers to\n\nthe administrative directive, the Department submits it is available to Warren in the\n\nPinckneyville library.\n\n¶ 38 Furthermore, the second document Warren relies upon does not refer to policies\n\nor protocols for video surveillance footage at all; the fact the Department has a general duty to\n\ndisclose “Staff Operating Procedures/Policies” under section 3.5(a) of FOIA does not prove the\n\nexistence of protocols relating to video surveillance. Accordingly, the circuit court did not err in\n\ndismissing this claim.\n\n\n\n\n -9-\n\f¶ 39 b. Temperature Monitoring Records\n\n¶ 40 The Department’s assistant legal counsel also averred, in his affidavit attached to\n\nthe motion to dismiss, he had consulted with Lawrence’s chief engineer and found no records\n\nresponsive to Warren’s request for “temperature monitoring records” for various Lawrence\n\nhousing units over several periods in 2019. Warren argues the Department’s assertion is\n\ninaccurate because the Department possesses “thermometers that monitor temperatures.”\n\n¶ 41 Here, the Department provided clear and convincing evidence it did not possess\n\nthe records sought by Warren. The fact the Department’s facilities contain thermometers does\n\nnot contradict the assistant legal counsel’s affidavit stating the Department does not aggregate\n\ndata regarding temperature readings from those thermometers. As stated above, FOIA does not\n\ncreate an independent duty upon a public body to maintain or prepare a public record that it is\n\nnot already legally required to keep, and “[t]he nonexistence of requested documents is a\n\ncognizable affirmative defense.” Barner v. Fairburn, 2019 IL App (3d) 180742, ¶ 12. Because\n\nthe Department demonstrated it does not possess these records, the circuit court properly\n\ndismissed this claim.\n\n¶ 42 2. Request Not Identifying a Public Record\n\n¶ 43 Next, Warren argues the Department improperly denied his requests for\n\n(1) information on the Department’s Effexor ban and the drug’s effects (count II), (2) “copies of\n\nall denial[s] of FOI[A] requests for 2020” (count II), and (3) staff protocols regarding the\n\ninvestigation of grievances (count IV). The Department asserts Warren’s requests did not\n\nreasonably identify a public record and therefore were properly denied. We agree with the\n\nDepartment.\n\n\n\n\n - 10 -\n\f¶ 44 As stated above, a FOIA request must “reasonably identify a public record and\n\nnot general data, information or statistics.” Chicago Tribune Co., 2014 IL App (4th) 130427,\n\n¶ 33. Furthermore, FOIA “does not compel the agency to provide answers to questions posed by\n\nthe inquirer.” Kenyon v. Garrels, 184 Ill. App. 3d 28, 32 (1989).\n\n¶ 45 Here, the Department properly denied Warren’s request for information regarding\n\nthe Department’s ban of the drug Effexor because he did not reasonably identify any public\n\nrecord. In his request, Warren asked for “information of why psyc[h]otropic med[ication]\n\nEffexor was banned from [the Department] and its short term and long term side effects.” This\n\nwas clearly a request for data or general information not contemplated by FOIA, the focus of\n\nwhich is “access to records or documents.” Warren counters that he did, in fact, identify a public\n\nrecord, because in order for the Department to “notify all mental health professionals *** that\n\nthey are no longer able to provide/pr[e]scribe ‘Effexor’ to mental health patients,” it would have\n\nsent “a memorandum email” containing “the order, and reasoning for it.” Even assuming such a\n\nmemorandum email exists, Warren’s original request referenced no such record or document.\n\nWarren cannot now complain on appeal that the Department failed to produce a record he never\n\nrequested. Because the Department is not required to respond to general data requests, the circuit\n\ncourt properly dismissed this claim.\n\n¶ 46 Similarly, the Department properly denied Warren’s request for rules and staff\n\nprotocols governing grievances. In his request, Warren sought “what rules and staff protocol[s]\n\nof grievances and grievance officer routine[s] regarding investigation of their complaint of\n\ngrievances.” Once again, Warren’s request sought general information regarding grievances\n\nwithout identifying any public record or document. Warren counters “a reasonable person could\n\nhave identified what records were being sought” and the Department therefore acted in bad faith\n\n\n\n\n - 11 -\n\ffor not producing them. We disagree. Warren’s request clearly contemplated a compilation of\n\ninformation, a task which FOIA does not impose on public bodies, and the Department’s refusal\n\nto prepare a compilation it is not required to make does not constitute an act of bad faith. See\n\nKenyon, 184 Ill App. 3d at 32. Accordingly, the circuit court properly dismissed this claim.\n\n¶ 47 Finally, the Department also properly denied Warren’s request for “copies of all\n\ndenial of FOIA requests for 2020.” Warren’s request did not specify whether he sought\n\ninformation regarding every FOIA request denial issued by the Department for all requestors or\n\nonly those pertaining to his own previous FOIA requests. In response, the Department\n\nspecifically asked Warren to clarify and narrow the scope of the records he sought pursuant to\n\nthis request, but Warren did not reply to the Department’s letter. (We note Warren later\n\nrequested all of the denials of his own FOIA requests from 2020 (count III), which the\n\nDepartment denied on the basis it would be unduly burdensome to produce. We discuss the\n\ndenial of that request below.) We conclude the circuit court properly dismissed this claim\n\nbecause it did not reasonably identify which FOIA denials Warren sought.\n\n¶ 48 3. Records for Internal Audit\n\n¶ 49 Warren next argues the Department failed to show it was statutorily exempt from\n\ndisclosing the requested building inspection reports (count V) and health, sanitation, and safety\n\nreports (counts III and V). The Department argues it presented clear and convincing evidence it\n\nwas exempt from disclosing these documents because they were prepared for internal auditing\n\npurposes. We agree with the Department.\n\n¶ 50 As stated above, section 7(1)(m) of FOIA specifically exempts from disclosure\n\n“materials prepared or compiled with respect to internal audits of public bodies.” 5 ILCS\n\n140/7(1)(m) (West 2020). Although FOIA does not define “internal audit,” Black’s Law\n\n\n\n\n - 12 -\n\fDictionary (11th ed. 2019) defines an audit as “[a] formal examination of an *** organization’s\n\naccounting records, financial situation, or compliance with some other set of standards,” and an\n\ninternal audit as being “performed by an organization’s personnel to ensure that internal\n\nprocedures, operations, and accounting practices are in proper order.”\n\n¶ 51 Here, the Department provided clear and convincing evidence the reports\n\nrequested by Warren were exempt. In its motion to dismiss, the Department asserted the\n\nrequested health, safety, sanitation, and building inspection reports were exempt from disclosure\n\nbecause they were prepared for Department internal auditing purposes. In his affidavit, the\n\nDepartment’s assistant legal counsel averred the Department “does not have any reports entitled\n\n‘building inspection reports.’ ” He further averred that while the Department’s “Building Safety\n\nand Sanitation Inspection Reports were likely responsive” to Warren’s requests, “they were\n\nmaterials prepared or compiled for internal audits” and were therefore exempt from disclosure.\n\nSpecifically, he averred those reports “summarize [the Department’s] methodical reviews of\n\ncompliance with certain sets of standards established by [the Department]. The reports document\n\nwhether standards were met in each particular area and what corrective actions were\n\nrecommended.” This affidavit shows the requested records were prepared for the purpose of\n\ndetermining whether the Department had complied with its own standards of building safety and\n\nsanitation, and therefore we find they qualify as records prepared for “internal audits of public\n\nbodies.” 5 ILCS 140/7(1)(m) (West 2020).\n\n¶ 52 Warren, relying on Uptown People’s Law Center v. Department of Corrections,\n\n2014 IL App (1st) 130161, contends the exemption is inapplicable because the Department\n\ndisclosed a similar category of records in that case. Warren’s reliance is misplaced. In Uptown,\n\nthe plaintiff nonprofit organization filed a complaint against the Department, asserting the\n\n\n\n\n - 13 -\n\fDepartment failed to respond to its requests, on three separate dates, for “records relating to\n\nprison conditions, facility maintenance and sanitation reports.” Uptown, 2014 IL App (1st)\n\n130161, ¶ 3. Following the filing of the organization’s complaint, the Department tendered all of\n\nthe requested materials. We acknowledge the requested records in Uptown, as described by the\n\ncourt in that case, appear to be similar in nature to those requested by Warren here. However, the\n\nUptown court at no point opined on whether the records were exempt from disclosure under\n\nsection 7(1)(m) because the Department never asserted such an exemption. The mere fact it\n\nvoluntarily disclosed records of a similar nature in that case has no bearing on whether the\n\nexemption is applicable here. The court did not state the exact wording of the request in that\n\ncase, and because the documents were voluntarily disclosed, the Department presumably\n\nconcluded it possessed responsive, nonexempt records to the organization’s request.\n\nAccordingly, we disagree with Warren’s assertion the exemption did not apply here and find the\n\ncourt’s dismissal of these claims was proper.\n\n¶ 53 4. Records Available at Pinckneyville\n\n¶ 54 The Department asserts it was statutorily exempt from disclosing the\n\nadministrative directive on the storage of inmate property (count I) because it was available to\n\nWarren in the Pinckneyville library, and Warren nonetheless forfeited any claim to the contrary\n\nby failing to raise it in the circuit court or in this court on appeal. The Department correctly notes\n\nWarren does not raise this issue in his opening brief on appeal and appears to have abandoned it.\n\n“Issues not raised in either the trial court or the appellate court are forfeited.” 1010 Lake Shore\n\nAss’n v. Deutsche Bank National Trust Co., 2015 IL 118372, ¶ 14. Warren does not dispute the\n\nDepartment’s assertion of forfeiture, and we therefore decline to address this issue.\n\n¶ 55 5. Unduly Burdensome Requests\n\n\n\n\n - 14 -\n\f¶ 56 Lastly, Warren argues the Department improperly denied his requests for copies\n\nof the denials of his previous FOIA requests (counts I, II, and III). The Department asserts these\n\nrequests were unduly burdensome to produce because it had already sent him these documents.\n\nWe agree with the Department.\n\n¶ 57 As stated above, “[r]equests calling for all records falling within a category shall\n\nbe complied with unless compliance with the request would be unduly burdensome for the\n\ncomplying public body and there is no way to narrow the request and the burden on the public\n\nbody outweighs the public interest in the information.” (Emphasis added.) 5 ILCS 140/3(g)\n\n(West 2020). This section of FOIA specifically provides that “[r]epeated requests from the same\n\nperson for the same records that are unchanged or identical to records previously provided or\n\nproperly denied under this Act shall be deemed unduly burdensome under this provision.” 5\n\nILCS 140/3(g) (West 2020).\n\n¶ 58 Here, the Department properly declined to resend its denials of Warren’s previous\n\nFOIA requests because, pursuant to section 3(g) of FOIA, they were “unchanged or identical to\n\nrecords previously provided” under FOIA. The Department asserts it provided Warren the\n\ndenials of his previous FOIA requests in response to the underlying requests. Warren argues the\n\n“repeated requests” exemption should not apply because although the denial letters were\n\nprovided to him as a response to a request for records, he did not make repeated requests for the\n\ndenial letters. Essentially, Warren argues the “repeated requests” exemption applies only when\n\nthe individual has previously requested the same record. Our reading of the statute does not\n\nsupport such an application. Although the statutory language refers to “repeated” requests from\n\nthe same person, we agree with the Department that this phrase “simply reflects that, generally,\n\nrecords that have been previously provided (and thus need not be re-disclosed) will have been\n\n\n\n\n - 15 -\n\fobtained via a FOIA request for those records, rather than, as here, sent in the course of FOIA\n\nproceedings.” Even assuming arguendo Warren’s reading of the statute is correct, the\n\nDepartment nonetheless properly denied Warren’s requests under section 3(g)’s general\n\nexemption for unduly burdensome requests because the Department did, in fact, already provide\n\nthe documents to Warren—a fact Warren does not dispute. Accordingly, we conclude the circuit\n\ncourt properly denied Warren’s claim regarding the denial of his requests for his previous FOIA\n\ndenial letters.\n\n¶ 59 Because Warren has failed to show the Department violated FOIA when it denied\n\nhis aforementioned requests for records, the circuit court properly allowed the Department’s\n\nmotion to dismiss, and we affirm.\n\n¶ 60 III. CONCLUSION\n\n¶ 61 For the reasons stated, consistent with Illinois Supreme Court Rule 23(b) (eff. Jan.\n\n1, 2021) we affirm the trial court’s judgment.\n\n¶ 62 Affirmed.\n\n\n\n\n - 16 -\n\f"} {"dedup_key":"2022 IL App (4th) 220204","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (4th) 220204","case_name":"Hurlbert v. Edmonds","court_level":"Appellate","appellate_district":"4th","year":2022,"county":"Official Capacity as Chief","appellate_docket":"4-22-0204","circuit_docket":"21-MR-34","published":1,"authoring_justice":"Turner","statute":["FOIA"],"exemptions_cited":["7(1)(i)"],"public_body":"Jo Daviess County","requesting_party":"Roger W. Hurlbert","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the denial of a FOIA request for GIS data, holding that the county properly invoked the section 7(1)(i) exemption for valuable commercial information. The court further held that the plaintiff forfeited his argument regarding the legality of the county's user fees under section 6 of FOIA due to a lack of development in the circuit court.","best_text_source":"Court Opinions - FOIA/Hurlbert v. Edmonds 2022 IL App (4th) 220204.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:44.100463","site_category":"General Records Exemptions","date_decided":"2022-11-30","site_url":"/cases/2022%20IL%20App%20(4th)%20220204/","text_url":"/case-text/2022%20IL%20App%20(4th)%20220204.txt","full_text":" Digitally signed by\n Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2024.01.03\n 12:58:38 -06'00'\n\n\n\n Hurlbert v. Edmonds, 2022 IL App (4th) 220204\n\n\n\nAppellate Court ROGER W. HURLBERT, d/b/a Sage Information Services, Plaintiff-\nCaption Appellant, v. LAURA EDMONDS, in Her Official Capacity as Chief\n County Assessment Officer of Jo Daviess County, Defendant-\n Appellee.\n\n\n\nDistrict & No. Fourth District\n No. 4-22-0204\n\n\n\nFiled November 30, 2022\n\n\n\nDecision Under Appeal from the Circuit Court of Jo Daviess County, No. 21-MR-34;\nReview the Hon. John D. Hay, Judge, presiding.\n\n\n\nJudgment Affirmed.\n\n\nCounsel on Donald M. Craven and Joseph A. Craven, of Donald M. Craven, P.C.,\nAppeal of Springfield, for appellant.\n\n Jane M. May, of OKGC Law, LLC, of Northbrook, for appellee.\n\n\n\nPanel JUSTICE TURNER delivered the judgment of the court, with opinion.\n Presiding Justice Knecht and Justice Bridges concurred in the\n judgment and opinion.\n\f OPINION\n\n¶1 In April 2021, plaintiff, Roger W. Hurlbert, doing business as Sage Information Services,\n filed pro se a complaint against defendant, Laura Edmonds, in her official capacity as Chief\n County Assessment Officer of Jo Daviess County. The complaint sought (1) a finding\n Edmonds violated the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2020))\n when she withheld the requested records, (2) the release of the records requested by plaintiff,\n and (3) an award of attorney fees, costs, and civil penalties in favor of plaintiff. In July 2021,\n Jo Daviess County (Defendant County) was substituted as defendant in this case. In August\n 2021, the parties filed cross-motions for summary judgment. After a December 2021 hearing,\n the Jo Daviess County circuit court granted summary judgment in favor of Defendant County\n and against plaintiff.\n¶2 Plaintiff appeals, asserting the circuit court erred by finding (1) the exemption set forth in\n section 7(1)(i) of FOIA (5 ILCS 140/7(1)(i) (West 2020)) applied to plaintiff’s request and\n (2) Defendant County had not waived its right to assert an exemption. We affirm.\n\n¶3 I. BACKGROUND\n¶4 In a January 30, 2021, letter, plaintiff requested a copy of the most recent county tax map\n file maintained in accordance with section 9-35 of the Property Tax Code (35 ILCS 200/9-35\n (West 2020)) for all of the parcels in the county in shapefile or similar format, not PDF\n (portable document format). The request further stated it was only the county tax maps that\n were being sought and not any overlaying data. Edmonds received the request and forwarded\n it to Joe Kratcha, the FOIA officer and director of information technology and geographic\n information services for Defendant County. In reply to plaintiff’s request, Kratcha sent plaintiff\n a letter requesting plaintiff, as president of Sage Information Services, to disclose if the FOIA\n request was for commercial purposes. Plaintiff replied, “we may be properly classified as a\n commercial requestor [sic].” On March 16, 2021, Kratcha sent plaintiff a letter denying his\n FOIA request. The letter noted geographic information system (GIS) data was exempt from\n disclosure under section 7(1)(i) of FOIA (5 ILCS 140/7(1)(i) (West 2020)) and “[s]hapefiles\n of parcel boundaries are GIS data.”\n¶5 In April 2021, plaintiff filed the FOIA complaint at issue against Edmonds. After\n Defendant County was substituted as defendant, it filed an answer and affirmative defense.\n The affirmative defense asserted an exemption to disclosure. It noted plaintiff was a\n commercial requester and any computer GIS data requested by plaintiff could be reasonably\n expected to produce private gain to plaintiff or a public loss to Defendant County. It further\n alleged the following: “Valuable formulae, computer geographic systems, designs, drawings\n and research data in the possession of defendant, Jo Daviess County, when disclosure could\n reasonably be expected to produce private gain or public loss, was properly withheld by\n defendant, Jo Daviess County, pursuant to § 7(1)(i) of [FOIA].” Plaintiff filed a reply to the\n affirmative defense, denying the allegations of Defendant County.\n¶6 In August 2021, plaintiff filed a motion for summary judgment. He first asserted the\n requested maps were an open and public record under section 2(c) of FOIA (5 ILCS 140/2(c)\n (West 2020)), and thus, it was presumed to be open for plaintiff’s inspection or copying.\n Plaintiff also argued Defendant County failed to prove by clear and convincing evidence a\n FOIA exemption applies. He contended a county tax map was not a “computer geographic\n\n -2-\n\f system” and the exemption set forth in section 7(1)(i) did not apply to his request. As such,\n plaintiff argued he was entitled to the production of the county tax maps in shapefile format\n and Defendant County’s failure to produce the county tax maps violated FOIA. Plaintiff\n attached several documents to his motion, including (1) an April 15, 2005, letter from then\n Attorney General Lisa Madigan to then House Majority Leader Barbara Flynn Currie and\n (2) plaintiff’s affidavit listing 21 counties from which he had obtained county tax map files in\n shapefile format. The April 2005 letter addressed Currie’s question about whether a public\n body could charge a fee in excess of that authorized by section 6 of FOIA (5 ILCS 140/6 (West\n 2002)). Attorney General Madigan opined that, while section 7(1)(i) of FOIA allowed a public\n body to withhold access to records contained in or generated by a GIS in limited circumstances\n where disclosure would likely result in a private gain or public loss, the public body, if provided\n access to such information, could not charge a fee for reproducing the information in excess of\n the fee authorized by section 6.\n¶7 That same month, Defendant County also filed a motion for summary judgment,\n contending the documents plaintiff requested were part of a computer geographic system and\n were exempt under section 7(1)(i). It noted Defendant County had a reasonable expectation of\n plaintiff receiving a private gain and the county a public loss because plaintiff was a\n commercial requester in the business of selling mapping information for a commercial purpose.\n Defendant County also stated it was relying upon a 2010 opinion of the public access counselor\n of the Illinois Attorney General’s office agreeing with Defendant County’s prior refusal to\n produce the requested information when a similar request was made by a map publisher.\n Defendant County filed a memorandum of law in support of its motion for summary judgment\n and attached, inter alia, affidavits by Edmonds and Kratcha, the June 14, 2010, letter from the\n Attorney General’s public access counselor, and legislative history. Attached to Kratcha’s\n affidavit was a copy of the Defendant County’s licensing agreement for GIS data, which\n included a provision the data could not be sold. The requested information addressed in the\n 2010 opinion by the public access counselor was the following: (1) parcel polygons with\n attributed owner information, including the property index number, owner’s name, address,\n and acreage, (2) section polygons with attributes, (3) incorporated city and village polygons\n and attributes, (4) road centerlines with attributes, (5) town and range polygons with attributes,\n (6) subdivision polygons with attributes, (7) hydroline and polygon features with attributes,\n (8) railroad lines with attributes, and (9) parks and recreation polygons with attributes. The\n parties then filed responsive briefs to the cross-motions for summary judgment.\n¶8 On December 30, 2021, the circuit court held a hearing on the cross-motions for summary\n judgment. The court had the parties make arguments, and then it asked questions of the parties.\n After hearing the parties’ final arguments, the court took the matter under advisement. On\n February 28, 2022, the court entered his written order, finding (1) the requested county tax\n maps stored in a shapefile format were exempt under section 7(1)(i) of FOIA and (2) Defendant\n County’s previous voluntary disclosure of the requested records did not result in waiver of its\n right to invoke the exemption set forth in section 7(1)(i). The court granted summary judgment\n in favor of Defendant County and against plaintiff.\n¶9 On March 15, 2022, plaintiff filed a timely notice of appeal in sufficient compliance with\n Illinois Supreme Court Rule 303 (eff. July 1, 2017). Thus, this court has jurisdiction of\n plaintiff’s appeal under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994).\n\n\n\n -3-\n\f¶ 10 II. ANALYSIS\n¶ 11 In this case, the parties filed cross-motions for summary judgment (735 ILCS 5/2-1005\n (West 2020)), and the circuit court entered judgment in favor of Defendant County. “The filing\n of cross-motions for summary judgment constitutes an implicit agreement between the parties\n that there are no genuine issues of material fact and only a question of law is presented to the\n court.” West Bend Mutual Insurance Co. v. Krishna Schaumburg Tan, Inc., 2021 IL 125978,\n ¶ 30, 183 N.E.3d 47. When the circuit court has granted summary judgment to a party, we\n review the judgment de novo. West Bend Mutual Insurance Co., 2021 IL 125978, ¶ 30.\n Moreover, whether an exemption applies under FOIA can be a question of statutory\n construction, which we review de novo. Garlick v. Naperville Township, 2017 IL App (2d)\n 170025, ¶ 44, 84 N.E.3d 607.\n\n¶ 12 A. Section 7(1)(i) Exemption\n¶ 13 Plaintiff first contends the circuit court erred by finding Defendant County showed by clear\n and convincing evidence section 7(1)(i) applied to his request for disclosure of the county tax\n maps in shapefile format.\n\n¶ 14 1. Statutory Construction of Computer Geographic Systems\n¶ 15 With FOIA, the legislature established a public policy for Illinois that “all persons are\n entitled to full and complete information regarding the affairs of government and the official\n acts and policies of those who represent them.” 5 ILCS 140/1 (West 2020); see also Bowie v.\n Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373, 378, 538 N.E.2d\n 557, 559 (1989) (noting the statute’s purpose is “to open governmental records to the light of\n public scrutiny”). Courts liberally construe FOIA “to achieve the goal of ‘provid[ing] the\n public with easy access to government information.’ ” Garlick, 2017 IL App (2d) 170025, ¶ 55\n (quoting Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 416, 844\n N.E.2d 1, 15 (2006)). FOIA also provides:\n “Restraints on access to information, to the extent permitted by this Act, are limited\n exceptions to the principle that the people of this State have a right to full disclosure of\n information relating to the decisions, policies, procedures, rules, standards, and other\n aspects of government activity that affect the conduct of government and the lives of\n any or all of the people.” 5 ILCS 140/1 (West 2020).\n As such, courts are to construe narrowly FOIA’s exemptions. Garlick, 2017 IL App (2d)\n 170025, ¶ 55.\n¶ 16 In this case, Defendant County relied upon the exemption contained in section 7(1)(i) of\n FOIA (5 ILCS 140/7(1)(i) (West 2020)) and asserted the requested shapefiles fell under the\n “computer geographic systems” language of the exemption. Plaintiff contends that exemption\n is inapplicable because it just applies to systems and not the data or files generated or stored\n within those systems. Whether “computer geographic systems” includes GIS data such as\n shapefiles presents a matter of first impression in Illinois.\n¶ 17 The primary objective of statutory interpretation is to ascertain and give effect to the\n legislature’s intent. People v. Leib, 2022 IL 126645, ¶ 28. Our “inquiry begins with examining\n the plain and ordinary meaning of the statutory language, which is the surest and most reliable\n indicator of legislative intent.” Leib, 2022 IL 126645, ¶ 28. This court construes the statute as\n\n\n -4-\n\f a whole and affords the statutory language its plain and ordinary meaning. Leib, 2022 IL\n 126645, ¶ 28. Moreover, the rules of statutory construction require “a statute to be applied in\n a way that no word, clause or sentence is rendered superfluous or meaningless.” Kozak v.\n Retirement Board of the Firemen’s Annuity & Benefit Fund of Chicago, 95 Ill. 2d 211, 216,\n 447 N.E.2d 394, 397 (1983). “Where that language is clear and unambiguous, we must apply\n the statute without further aids of statutory construction.” Leib, 2022 IL 126645, ¶ 28.\n Accordingly, we begin our analysis with the language of section 7(1)(i) of FOIA, which states\n the following:\n “Valuable formulae, computer geographic systems, designs, drawings and research\n data obtained or produced by any public body when disclosure could reasonably be\n expected to produce private gain or public loss. The exemption for ‘computer\n geographic systems’ provided in this paragraph (i) does not extend to requests made by\n news media as defined in Section 2 of this Act when the requested information is not\n otherwise exempt and the only purpose of the request is to access and disseminate\n information regarding the health, safety, welfare, or legal rights of the general public.”\n 5 ILCS 140/7(1)(i) (West 2020).\n¶ 18 We begin by examining the plain language of “computer geographic systems.” Merriam-\n Webster’s Online Dictionary defines a “computer” as “a programmable usually electronic\n device that can store, retrieve, and process data.” Merriam-Webster Online Dictionary, https://\n merriam-webster.com/dictionary/computer (last visited Nov. 18, 2022) [https://perma.cc/\n 5ML5-D3LN]. “[G]eographic” is defined as “of or relating to geography.” Merriam-Webster\n Online Dictionary, https://merriam-webster.com/dictionary/geographic (last visited Nov. 18,\n 2022) [https://perma.cc/R5KM-HJL5]. A definition for “system” is “a group of devices or\n artificial objects or an organization forming a network especially for distributing something or\n serving a common purpose.” Merriam-Webster Online Dictionary, https://merriam-\n webster.com/dictionary/system (last visited Nov. 18, 2022) [https://perma.cc/5WNQ-2VFA].\n Thus, the plain language of “computer geographic systems” does not clearly suggest the data\n contained within such a system would fall under the exemption. Moreover, as plaintiff notes,\n the legislature referred to “research data” but did not mention data with “computer geographic\n systems.” However, as Defendant County points out, the provision goes on to say the computer\n geographic systems exemption does not extend to news media requests “when the requested\n information is not otherwise exempt and the only purpose of the request is to access and\n disseminate information regarding the health, safety, welfare, or legal rights of the general\n public.” 5 ILCS 140/7(1)(i) (West 2020). If the term “computer geographic systems” did not\n include the data or information stored in the system, then the aforementioned provision would\n be rendered superfluous because the media would not request the system’s hardware or\n software to provide information for the general public. To render the news media provision\n superfluous is inconsistent with the rules of statutory construction. Since the statute’s plain\n language is unambiguous, we do not address the provision’s legislative history or the\n California case, Sierra Club v. Superior Court, 302 P.3d 1026 (Cal. 2013), cited by plaintiff.\n¶ 19 Accordingly, we find a reading of the plain language of the entire statute provides the term\n “computer geographic systems” includes data stored in such a system.\n\n\n\n\n -5-\n\f¶ 20 2. Nature of Plaintiff’s Request\n¶ 21 Plaintiff’s FOIA request at issue in this appeal was as follows:\n “We would greatly appreciate a copy of the most recent county tax map file which\n is maintained in accordance with Sec. 9-35 of the Property Tax Code [(35 ILCS 200/9-\n 35 (West 2020))] for all of the parcels in the county. Shapefile or similar (not PDF)\n format is requested, either on CD or other electronic media, or by email. A sample\n printout from your mapping file is attached.”\n Later, in the request, plaintiff acknowledged the county tax map file may be part of a\n comprehensive mapping system with overlays adding additional information. Plaintiff\n emphasized he only wanted the county tax maps. As such, plaintiff requested a shapefile format\n file of the same geographic information (parcel boundaries and identification traits) contained\n in the PDF form of the county tax map. It did not request any other layers of information, such\n as zoning, wells, septic tanks, public safety information, and orthophotography. It is undisputed\n that the PDF form of the county tax maps are public documents subject to disclosure under\n FOIA.\n¶ 22 In the denial letter for the aforementioned request, Kratcha stated, “[s]hapefiles of parcel\n boundaries are GIS data,” and GIS data is exempt under section 7(1)(i). When a public body\n asserts a record is exempt from disclosure, the public body bears the burden of proving by clear\n and convincing evidence the exemption applies. 5 ILCS 140/1.2 (West 2020). “ ‘To meet this\n burden and to assist the court in making its determination, the agency must provide a detailed\n justification for its claim of exemption, addressing the requested documents specifically and\n in a manner allowing for adequate adversary testing.’ ” (Emphasis in original.) Illinois\n Education Ass’n v. Illinois State Board of Education, 204 Ill. 2d 456, 464, 791 N.E.2d 522,\n 527 (2003) (quoting Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530, 537, 548 N.E.2d\n 1110, 1114 (1989)). Additionally, we note section 6 of FOIA (5 ILCS 140/6 (West 2020))\n states, “[w]hen a person requests a copy of a record maintained in an electronic format, the\n public body shall furnish it in the electronic format specified by the requester, if feasible.” As\n noted, Defendant County did not raise any feasibility issues or assert it did not maintain the\n county tax map without overlaying data.\n¶ 23 Plaintiff first asserts the location of the county tax map in shapefile format in the GIS\n system is not determinative. In support of that argument, he cites Stern v. Wheaton-Warrenville\n Community Unit School District 200, 233 Ill. 2d 396, 404, 910 N.E.2d 85, 91 (2009), where\n the supreme court addressed whether a school superintendent’s employment contract contained\n in his personnel file was exempt from disclosure under section 7(1)(b)(ii) of FOIA (5 ILCS\n 140/7(1)(b)(ii) (West 2006)). That section provided an exemption from disclosure for\n “ ‘personnel files and personal information maintained with respect to employees, appointees\n or elected officials of any public body or applicants for those positions.’ ” Stern, 233 Ill. 2d at\n 406 (quoting 5 ILCS 140/7(1)(b) (West 2006)). Our supreme court held the fact that the\n superintendent’s employment contract was physically maintained within a public employee’s\n personnel file was insufficient to insulate it from disclosure. Stern, 233 Ill. 2d at 412. The court\n explained that, if the exemption’s purpose was to prevent FOIA from being used to violate\n personal privacy, and FOIA expressly provided “ ‘[t]he disclosure of information that bears on\n the public duties of public employees,’ such as employment contracts, ‘shall not be considered\n an invasion of personal privacy,’ then a contract’s physical location within an otherwise\n exempt record is irrelevant.” Stern, 233 Ill. 2d at 412. That conclusion was supported by section\n\n -6-\n\f 8 of FOIA, which provided, “ ‘If any public record that is exempt from disclosure under\n Section 7 of this Act contains any material which is not exempt, the public body shall delete\n the information which is exempt and make the remaining information available for inspection\n and copying.’ ” Stern, 233 Ill. 2d at 412 (quoting 5 ILCS 140/8 (West 2006)). The supreme\n court also noted it had observed “the mere ‘commingling’ of exempt and nonexempt material\n [did] not prevent a public body from disclosing the nonexempt portion of the record.” Stern,\n 233 Ill. 2d at 412. While this case addresses a different exemption from disclosure and different\n types of electronic formats, the Stern decision indicates courts cannot just look at the location\n of the requested material but must also look at the material itself and the purpose behind the\n exemption when analyzing the exemption’s applicability.\n¶ 24 Plaintiff also contends the format is not determinative. That argument is not as simple as\n plaintiff suggests. One aspect of format addressed at oral arguments was the fact the shapefile\n format was more sophisticated than the PDF format, since the shapefile format allows for\n manipulation of the data it contains. Different electronic formats and the manipulation of\n public information was addressed in Fagel v. Department of Transportation, 2013 IL App (1st)\n 121841, 991 N.E.2d 365. There, the reviewing court considered whether the locked version of\n an electronic Excel spreadsheet provided by the public body—which restricted the requester’s\n ability to sort, search, filter, or utilize the data in a manner ordinarily allowed by the Excel\n program—complied with the statutory language of FOIA. Fagel, 2013 IL App (1st) 121841,\n ¶ 30. The Fagel court found the public body had to comply with FOIA by furnishing an\n electronic copy of the unlocked version of the Excel spreadsheet to the requestor. Fagel, 2013\n IL App (1st) 121841, ¶ 31. In reaching that conclusion, the Fagel court noted the request had\n been for the information “in ‘Excel format,’ ” which the reviewing court found “necessarily\n encompassed the production of the information in a manner that would allow [the requester]\n to fully exercise the functions of the Excel program with regard to the document.” Fagel, 2013\n IL App (1st) 121841, ¶ 31. It agreed with the circuit court that the “locked version of the Excel\n spreadsheet that [the public body] furnished to [the requester] resembled a ‘picture’ of an Excel\n spreadsheet, akin to a portable document format (PDF), rather than an actual Excel\n spreadsheet.” Fagel, 2013 IL App (1st) 121841, ¶ 31. Moreover, it was agreed the public body\n regularly maintained an unlocked version of the Excel spreadsheet in its ordinary course of\n business and had previously provided it during an inquiry process on the matter. Fagel, 2013\n IL App (1st) 121841, ¶ 31. Thus, the public body had the ability to provide the unlocked Excel\n spreadsheet, as requested. Fagel, 2013 IL App (1st) 121841, ¶ 31. In Fagel, 2013 IL App (1st)\n 121841, ¶ 31, the public body had not pled any exemptions under section 7 of FOIA applied\n to excuse it from providing the requested information in the unlocked format that is normally\n maintained by it.\n¶ 25 Additionally, the Fagel court shared the concerns of the circuit court and the public body\n about providing the public with access to unlocked electronic copies of public records had\n potential risks of manipulation or misuse of that information. Fagel, 2013 IL App (1st) 121841,\n ¶ 35. It noted the legislature could address the concern if desired. Fagel, 2013 IL App (1st)\n 121841, ¶ 35. The Fagel court also noted “[a] fear of manipulation or misuse of the information\n is not an exemption under section 7 of FOIA upon which [the public body] could justify\n withholding the unlocked version of the Excel spreadsheet.” Fagel, 2013 IL App (1st) 121841,\n ¶ 35. Since the Fagel decision, the legislature has not added an exemption for public records\n held in a format that allows for the manipulation of public information. Thus, the shapefile’s\n\n\n -7-\n\f functionality that allows for manipulation of public information alone does not make the\n shapefile exempt from disclosure.\n¶ 26 However, unlike Fagel, Defendant County did raise a section 7 exemption. Moreover,\n Stern directs us to look at the purpose behind the exemption in considering if a specific\n document is exempt. While we are unaware of any case law setting forth the purpose for the\n exemption contained in section 7(1)(i), a reading of the provision indicates its purpose is to\n prohibit private gain or public loss caused by the disclosure of certain valuable materials. Thus,\n we now examine the files specifically requested by plaintiff.\n¶ 27 In his affidavit, Kratcha explained a shapefile was a digital geospatial vector data that\n stored geometric location and attribute information of geographic features. According to\n Kratcha, maps in shapefile format can be constructed from various types of geographic\n information in a collection of layers and other elements. Shapefiles are stored in a GIS system.\n Defendant County budgets around $200,000 per year to maintain its GIS system. It also has a\n cost recovery system, under which requestors pay a fee to support the Defendant County’s GIS\n program and are required to sign a licensing agreement. While Defendant County could have\n provided a clearer explanation, we find Defendant County’s information did show the county\n tax maps in shapefile format were more valuable and had more functionality than those in PDF\n format. Since the exemption seeks to prohibit private gain or public loss from the disclosure\n of certain valuable materials, we find the exemption does apply to county tax maps stored in\n shapefile format in a geographic information system.\n\n¶ 28 3. Private Gain\n¶ 29 Plaintiff does not challenge the circuit court’s conclusion a reasonable expectation of\n private gain existed with the disclosure of the county tax maps in shapefile format.\n\n¶ 30 4. Conclusion\n¶ 31 Since the county tax maps in shapefile format were part of a computerized geographic\n system and the disclosure of such was reasonably expected to produce a private gain, we find\n the circuit court did not err by finding the section 7(1)(i) exemption applied.\n\n¶ 32 B. Waiver of Exemption\n¶ 33 Plaintiff also contends the circuit court erred by finding Defendant County had not waived\n its right to assert the section 7(1)(i) exemption. Defendant County contends its disclosure of\n GIS data under licensing agreements do not result in waiver of a section 7(1)(i) exemption.\n¶ 34 In Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 412-13, 680\n N.E.2d 374, 379 (1997), our supreme court found a university’s prior disclosure of information\n waived the university’s right to refuse disclosure of the information to the plaintiff under an\n exemption provided by FOIA. In reaching that conclusion, our supreme court recognized that,\n in addressing similar situations under the federal FOIA, the federal courts have held the\n voluntary disclosure of records in one situation can preclude later claims the same records are\n exempt from release to someone else. Lieber, 176 Ill. 2d at 413. It agreed with the Eighth\n Circuit Court of Appeals that “selective disclosure by the government ‘is offensive to the\n purposes underlying the FOIA and intolerable as a matter of policy. Preferential treatment of\n persons or interest groups fosters precisely the distrust of government the FOIA was intended\n\n\n -8-\n\f to obviate.’ ” Lieber, 176 Ill. 2d at 413 (quoting State of North Dakota ex rel. Olson v. Andrus,\n 581 F.2d 177, 182 (8th Cir. 1978)).\n¶ 35 However, the appellate court later recognized courts should not mechanically apply the\n aforementioned waiver rule whenever a prior disclosure of information has occurred but,\n rather, should consider “the circumstances related to the disclosure, including the purpose and\n extent of the disclosure as well as the confidentiality surrounding the disclosure.” Chicago\n Alliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 202, 808 N.E.2d\n 56, 67 (2004). In support of that finding, the court cited Mobil Oil Corp. v. United States\n Environmental Protection Agency, 879 F.2d 698, 700 (9th Cir. 1989), which noted “[t]he\n inquiry into whether a specific disclosure constitutes waiver is fact specific.”\n¶ 36 Plaintiff contends the facts of this case are nearly identical to the facts in Lieber and the\n waiver rule should apply. He notes Defendant County has produced the data to him in a\n hardcopy format, to others in the shapefile format upon signing a licensing agreement, and to\n others in a digital format via a computer at Defendant County’s assessment office. The printout\n provided to plaintiff and the digital format in the assessment office are in PDF format and not\n shapefile format. With the licensing agreement, the requester pays a fee for the GIS data and\n signs an agreement, which prohibits the reproduction and redistribution of the GIS data.\n Defendant County admitted to releasing GIS data, including parcel data, through a cost\n recovery program with a licensing agreement. The agreement prohibits the reproduction and\n redistribution of the GIS data, which would prevent the requestor from realizing private gain\n from receiving the information. Moreover, with the user fee, no public loss would occur from\n the disclosure under the licensing agreement. With no private gain or public loss from the\n disclosure of the GIS data, neither the exemption set forth in section 7(1)(i) nor its purpose are\n invoked by the disclosure. Thus, we agree with the circuit court that Defendant County did not\n waive that exemption in disclosing the information.\n¶ 37 Additionally, plaintiff asserts the user fee associated with Defendant County’s licensing\n agreement violates section 6 of FOIA (5 ILCS 140/6 (West 2020)). Defendant County asserts\n plaintiff has forfeited this issue. We agree. The lack of development of an issue results in its\n forfeiture. Sobczak v. General Motors Corp., 373 Ill. App. 3d 910, 924, 871 N.E.2d 82, 95\n (2007). The argument was not really developed at the circuit court level. We have no\n information on the actual amount of the user fee for obtaining the county tax maps in shapefile\n formatted under the licensing agreement. Even if we did know an amount, we fail to see how\n a user fee that violates section 6 waives Defendant County’s section 7(1)(i) exemption as to\n plaintiff’s current request. Any user fee would not be inconsistent with the language in Lieber,\n 176 Ill. 2d at 413, regarding the impropriety of preferential treatment of persons or interest\n groups because the disclosure in this case is consistent with the purpose of the applicable FOIA\n exemption. The persons receiving the document have essentially agreed to not use the valuable\n GIS data for personal gain.\n\n¶ 38 III. CONCLUSION\n¶ 39 For the reasons stated, we affirm the Jo Daviess County circuit court’s judgment.\n\n¶ 40 Affirmed.\n\n\n\n -9-\n\f"} {"dedup_key":"2022 IL App (4th) 220334-U","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (4th) 220334-U","case_name":"Darrion O. Foote v. Winnebago County Sheriff’s Office","court_level":"Appellate","appellate_district":"4th","year":2022,"county":"Winnebago","appellate_docket":"4-22-0334","circuit_docket":"21MR274","published":0,"authoring_justice":"Steigmann","statute":["FOIA"],"exemptions_cited":[],"public_body":"Winnebago County Sheriff’s Office","requesting_party":"Darrion O. Foote","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court affirmed the trial court’s dismissal of the plaintiff's complaint for failure to state a claim. The court held that the plaintiff failed to plead a cause of action because the defendant did not possess the requested records and the plaintiff sent his requests to the wrong public body.","best_text_source":"Court Opinions - FOIA/Foote v. Winnebago County Sheriff's Office, 2022 IL App (4th) 220334-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:44.233765","site_category":"FOIA Response Process","date_decided":"2022-12-12","site_url":"/cases/2022%20IL%20App%20(4th)%20220334-U/","text_url":"/case-text/2022%20IL%20App%20(4th)%20220334-U.txt","full_text":" NOTICE 2022 IL App (4th) 220334-U\n FILED\nThis Order was filed under\n NO. 4-22-0334 December 12, 2022\nSupreme Court Rule 23 and is Carla Bender\nnot precedent except in the 4th District Appellate\nlimited circumstances allowed IN THE APPELLATE COURT\n Court, IL\nunder Rule 23(e)(1).\n OF ILLINOIS\n\n FOURTH DISTRICT\n\n DARRION O. FOOTE, ) Appeal from the\n Plaintiff-Appellant, ) Circuit Court of\n v. ) Winnebago County\n WINNEBAGO COUNTY SHERIFF’S OFFICE, ) No. 21MR274\n Defendant-Appellee. )\n )\n ) Honorable\n ) Stephen Balogh,\n ) Judge Presiding.\n\n\n JUSTICE STEIGMANN delivered the judgment of the court.\n Justices Harris and Zenoff concurred in the judgment.\n\n ORDER\n\n ¶1 Held: The appellate court affirmed the trial court’s judgment dismissing plaintiff’s\n complaint for failure to state a claim.\n\n ¶2 In September 2021, plaintiff, Darrion O. Foote, pro se filed an amended\n\n complaint against defendant, Winnebago County Sheriff’s Office (Sheriff’s Office), Sheriff Gary\n\n Caruana, Jail Superintendent Robert Redmond, Captain Tim Owens, and Sergeant Steve\n\n McCorkle. Foote alleged in his complaint that the Sheriff’s Office—along with the other named\n\n parties, who are not a part of this appeal—violated the Freedom of Information Act (FOIA)\n\n (5 ILCS 140/1 et seq. (West 2020)) by (1) failing to provide records responsive to his FOIA\n\n requests and (2) failing to respond to FOIA requests he made in January 2021.\n\n ¶3 In October 2021, the Sheriff’s Office moved to dismiss Foote’s complaint\n\n pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2020)),\n\fwhich the trial court granted in January 2022.\n\n¶4 Foote appeals, arguing the trial court erred by (1) dismissing the complaint\n\nbecause (a) he sufficiently pled a cause of action under the FOIA and (b) the court has the\n\nauthority to provide the relief he seeks and (2) failing to impose Illinois Supreme Court Rule 137\n\n(Ill. S. Ct. R. 137 (eff. Jan 1, 2018)) sanctions on the Sheriff’s Office because its motion to\n\ndismiss was not supported by existing law or a good faith argument. We disagree and affirm the\n\ntrial court’s dismissal of Foote’s complaint.\n\n¶5 I. BACKGROUND\n\n¶6 As an initial matter, Foote concedes on appeal that the only properly named\n\ndefendant was the Sheriff’s Office. Accordingly, we will refer only to the Sheriff’s Office. In\n\nSeptember 2021, Foote filed an amended complaint against the Sheriff’s Office, alleging that in\n\nJanuary 2021, he submitted FOIA requests to it in which he requested the following:\n\n “(1) copies of the contract agreement entered into by Winnebago County and\n\n Aramark to provide commissary services to inmates, (2) copies of the contract\n\n agreement entered into by Winnebago County and Global Tel Link to provide\n\n telephone services to inmates, (3) copies of Winnebago County Jail inmate\n\n medical charging policy, (4) copies of the Winnebago County Jail medical cost\n\n fund as provided under 730 ILCS 125/17 and (5) hard copies of each ‘request.’ ”\n\n¶7 Foote alleged that he gave the completed request forms to his “assigned pod\n\nofficer” at the Winnebago County Jail. Foote further alleged that “[m]ore than 240 days *** have\n\nelapsed since [Foote] first submitted all [four] of his FOIA requests *** and the [Sheriff’s Office\n\nhas] still yet to produce the requested documents or otherwise respond to his requests.” Foote\n\nfurther alleged that over several months he filed multiple grievances with the Winnebago County\n\n\n\n\n -2-\n\fJail, as required by the jail’s policies, regarding the lack of a response to his FOIA requests. In\n\nFebruary 2021, he received a response to one of his grievances stating in part, “ ‘if this is about\n\nor regarding a FOIA request, I will forward this to the proper department.’ ” Based on this\n\nresponse, among other things, Foote believed that the Sheriff’s Office FOIA officer would be\n\naware of his requests. Foote also alleged that in February 2020, he had submitted two other\n\nFOIA requests to the Sheriff’s Office for “medical records” to which he did not receive response.\n\n¶8 In his prayer for relief, Foote asked the trial court, among other things, to\n\n(1) declare that the Sheriff’s Office acted in “bad faith, knowingly, willfully and intentionally”\n\nby failing to respond to the FOIA requests, (2) enjoin the Sheriff’s Office from disregarding the\n\nrequests, (3) declare that the Sheriff’s Office failed to inform Foote about their reasons for\n\nrefusal, (4) order the Sheriff’s Office to produce responsive records, and (5) award Foote civil\n\npenalties and costs.\n\n¶9 In October 2021, the Sheriff’s Office moved pursuant to section 2-615 of the\n\nCode of Civil Procedure to dismiss Foote’s amended complaint, arguing, among other things,\n\nthat (1) Foote was asserting, in part, a due process claim, for which he did not plead a\n\nprima facie case, (2) Foote’s claims regarding the lack of response or late responses were not\n\nactionable under the FOIA, and (3) “Plaintiff is merely unhappy that the requested information\n\nasked for under FOIA was not provided. A public body is under no obligation to inform the\n\nrequesting individual of the nature of the exemption claimed, nor answer at all if the request is\n\nbeing denied. An unanswered request is considered a denial.”\n\n¶ 10 In January 2022, the trial court entered a written order granting the motion to\n\ndismiss. First, the trial court found that the FOIA does not provide a statutory basis for suing\n\nindividuals and therefore “dismissed with prejudice” the “individually named defendants, other\n\n\n\n\n -3-\n\fthan the Sheriff.” The court also found that Foote sent his requests to the wrong public body.\n\nSpecifically, the documents Foote sought were maintained by either Winnebago County or the\n\n“University of Illinois Chicago, College of Medicine” and not the Sheriff’s Office. The court\n\nfurther denied defendant’s request for $30,000 in civil fines, finding that the FOIA “does not\n\ncreate a private right of action. *** [T]he FOIA limits the jurisdiction of the court as well as the\n\nremedies it may provide.” “The court only has the jurisdiction to review the final denial of a\n\nFOIA request by a public body.”\n\n¶ 11 In February 2022, Foote filed a motion to reconsider, asserting that (1) he had a\n\nvalid cause of action, (2) the trial court had jurisdiction to grant the relief he sought, and (3) civil\n\npenalties and costs were an appropriate remedy for a violation of the FOIA. In March 2022, the\n\ncourt denied Foote’s motion to reconsider.\n\n¶ 12 This appeal followed.\n\n¶ 13 II. ANALYSIS\n\n¶ 14 Foote appeals, arguing the trial court erred by (1) dismissing the complaint\n\nbecause (a) he sufficiently pled a cause of action under the FOIA and (b) the court has the\n\nauthority to provide the relief he seeks and (2) failing to impose Rule 137 sanctions on the\n\nSheriff’s Office because its motion to dismiss was not supported by existing law or a good faith\n\nargument. We disagree and affirm the trial court’s dismissal of Foote’s complaint.\n\n¶ 15 A. The Applicable Law and the Standard of Review\n\n¶ 16 1. The FOIA\n\n¶ 17 “The General Assembly has declared [the] FOIA’s underlying public policy to be\n\nthat ‘all persons are entitled to full and complete information regarding the affairs of government\n\nand the official acts and policies of those who represent them as public officials and public\n\n\n\n\n -4-\n\femployees consistent with the terms of this Act.’ ” Green v. Chicago Police Department, 2022\n\nIL 127229, ¶ 37 (quoting 5 ILCS 140/1 (West 2018)). Accordingly, all “public records are\n\npresumed to be open and accessible.” Id. ¶ 38.\n\n¶ 18 Regarding enforcement of the FOIA, section 11 of the FOIA provides, in part, the\n\nfollowing:\n\n “(a) Any person denied access to inspect or copy any public record by a\n\n public body may file suit for injunctive or declaratory relief.\n\n ***\n\n (i) If a person seeking the right to inspect or receive a copy of a public\n\n record prevails in a proceeding under this Section, the court shall award such\n\n person reasonable attorney’s fees and costs. In determining what amount of\n\n attorney’s fees is reasonable, the court shall consider the degree to which the\n\n relief obtained relates to the relief sought. ***\n\n (j) If the court determines that a public body willfully and intentionally\n\n failed to comply with this Act, or otherwise acted in bad faith, the court shall also\n\n impose upon the public body a civil penalty of not less than $2,500 nor more than\n\n $5,000 for each occurrence.” 5 ILCS 140/11(a), (i), (j) (West 2020).\n\n¶ 19 2. Section 2-615 Motion To Dismiss\n\n¶ 20 A motion to dismiss under section 2-615 of the Code of Civil Procedure tests the\n\nlegal sufficiency of a complaint. Walworth Investments-LG, LLC. v. Mu Sigma, Inc., 2022 IL\n\n127177, ¶ 39. “In ruling on a section 2-615 motion, a court must accept as true all well-pleaded\n\nfacts and all reasonable inferences therefrom, to determine whether the complaint’s allegations—\n\nconstrued in the light most favorable to the plaintiff—are sufficient to establish a cause of action\n\n\n\n\n -5-\n\fupon which relief may be granted.” Id. Courts should grant a motion to dismiss pursuant to\n\nsection 2-615 only when “ ‘it is clearly apparent that no set of facts can be proved that would\n\nentitle the plaintiff to recovery.’ ” O’Connell v. County of Cook, 2022 IL 127527, ¶ 18.\n\n¶ 21 Appellate courts review a dismissal under section 2-615 de novo. Id. ¶ 19.\n\n¶ 22 B. This Case\n\n¶ 23 1. The Sheriff’s Office Could Not Violate FOIA Because the Requested Records\n\n Were Not Under Its Control\n\n¶ 24 The FOIA does not require a public body to compile records it does not ordinarily\n\nkeep. Chicago Tribune Co. v. Department of Financial & Professional Regulation, 2014 IL App\n\n(4th) 130427, ¶ 34, 8 N.E.3d 11. Accordingly, any documents not in existence or under the\n\npublic body’s control are not subject to the FOIA and thus cannot result in a violation of the\n\nFOIA. See Barner v. Fairburn, 2019 IL App (3d) 180742, ¶ 13, 134 N.E.3d 987 (“The records\n\nrequested by plaintiff either did not exist or were not in defendants’ possession. Based on these\n\nfacts, defendants could not have violated FOIA by failing to turn such documents over to\n\nplaintiff.”).\n\n¶ 25 Initially, we note that the trial court here appears to have taken judicial notice of\n\nwhich public bodies actually or likely possessed the requested documents. The court’s doing so\n\nappears to be authorized by the recent decision of the Illinois Supreme Court in People v.\n\nCastillo, 2022 IL 127894, ¶¶ 39-42, in which that court wrote that “a court [can] take judicial\n\nnotice of a fact that is not subject to reasonable dispute, even when that fact constitutes an\n\nelement of the offense.” Accordingly, we see no reason why that principle applied in the criminal\n\ncontext should not also apply to the elements of a claim in a civil complaint.\n\n\n\n\n -6-\n\f¶ 26 Here, as the trial court pointed out in its written order, Foote “pled himself out of\n\ncourt” because each of his FOIA requests, on their face, failed to support a claim under section\n\n11 of the FOIA. Foote’s first two FOIA requests sought contracts between Winnebago County\n\nand outside vendors, not the Sheriff’s Office and outside vendors. Specifically, Foote requested\n\ncontracts between Winnebago County and (1) Aramark, which provided commissary services to\n\ninmates, and (2) Global Tel Link, which provided telephone services to inmates. Accordingly,\n\nFoote knew or reasonably should have known that Winnebago County was the public body\n\nmaintaining the documents he sought.\n\n¶ 27 Second, Foote requested the Winnebago County Jail’s inmate medical “charging\n\npolicy.” The trial court found that, as to this request, “the court is left to guess what it is that he\n\nhas requested.” “A request to inspect or copy must reasonably identify a public record and not\n\ngeneral data, information, or statistics.” Chicago Tribune Co., 2014 IL App (4th) 130427, ¶ 33.\n\nWe agree with the trial court that Foote has not reasonably identified a specific record and his\n\nrequest is vague and unclear. The trial court further found that, if Foote’s request pertains to\n\ncharges for medical services provided to inmates, documents related to that topic are controlled\n\nby the University of Illinois College of Medicine.\n\n¶ 28 Last, Foote’s fourth request was for the “medical cost fund as provided under 730\n\nILCS 125/17 [(West 2020)].” That statute Foote cites is section 17 of the County Jail Act, which\n\nprovides, in part, that medical providers can obtain reimbursement from a county for services\n\nrendered. Id. The trial court found that “[section 17 of the County Jail Act] provides that the\n\nCounty, not the Sheriff, may provide for reimbursement to the medical providers” (emphasis\n\nomitted) and, accordingly, “the public body to which such a request should be sent would be\n\n\n\n\n -7-\n\fWinnebago County, not the Sheriff’s Department.” We agree and conclude that Foote has failed\n\nto state any claim for injunctive or declaratory relief under the FOIA.\n\n¶ 29 2. Because the Sheriff’s Office Did Not Violate the FOIA, Foote Is Not Entitled to\n\n Civil Penalties or Costs\n\n¶ 30 Foote argues that the trial court erred by finding it did not have the authority to\n\nprovide the remedies Foote sought. Regardless of the trial court’s reasoning for granting the\n\nmotion to dismiss, Foote is not entitled to any remedy based on his pleadings. See Tillman v.\n\nPritzker, 2021 IL 126387, ¶ 24, 183 N.E.3d 94 (Appellate courts “may sustain the [trial] court’s\n\njudgment on any ground supported by the record, even a ground not relied on by that court.”).\n\n¶ 31 For the reasons we wrote earlier, Foote’s claims for injunctive and declaratory\n\nrelief against the Sheriff’s Office are improper. Regarding Foote’s claims for fines and costs,\n\nbecause (1) Foote did not prevail within the meaning of the FOIA and (2) his amended complaint\n\ndoes not plead facts that demonstrate the Sheriff’s Office willfully and intentionally failed to\n\ncomply with the FOIA, Foote did not state a cause of action for the same.\n\n¶ 32 Under section 11 of the FOIA (5 ILCS 140/11 (West 2020), for Foote to sustain\n\nhis claim for costs, he would have had to prevail in his FOIA action, which minimally requires\n\nthat he actually received some of the documents he requested. See Donley v. City of Springfield,\n\n2022 IL App (4th) 210378, ¶ 30 (“[A] plaintiff’s obtaining the relief sought *** may entitle that\n\nplaintiff to an award of reasonable attorney fees [and costs].”). Here, Foote did not receive any\n\ndocuments responsive to his requests. Indeed, Foote could not have received those documents\n\nbecause the Sheriff’s Office did not possess or keep them. Accordingly, he did not prevail and\n\nthus is not entitled to attorney fees or costs. See 5 ILCS 140/11 (West 2020).\n\n¶ 33 Likewise, Foote failed to plead facts demonstrating that the Sheriff’s Office\n\n\n\n\n -8-\n\fwillfully and intentionally failed to comply with the FOIA or otherwise acted in bad faith.\n\nInstead, relevant to section 11(j) of the FOIA, Foote’s amended complaint merely alleged that\n\n(1) he made requests to the Sheriff’s Office for documents, which were clearly not in the\n\npossession of the Sheriff’s Office and (2) the Sheriff’s Office did not respond to those requests.\n\nFoote has not pointed to any authority that suggests a public body’s failure to respond to FOIA\n\nrequests for documents not in its possession is sufficient to maintain a claim for civil penalties.\n\nSee Fairburn, 2019 IL App (3d) 180742, ¶ 13 (stating a public body cannot violate the FOIA for\n\nfailing to turn over a record not in existence or that it does not possess).\n\n¶ 34 Ultimately, Foote sent his requests to the wrong public body. Although it would\n\nbehoove the Sheriff’s Office to nonetheless respond to such requests with a simple “we do not\n\nkeep those records,” based on Foote’s amended complaint, in the light most favorable to Foote,\n\nhe failed to plead a cause of action for which relief could be granted.\n\n¶ 35 3. Foote Forfeited His Claim for Rule 137 Sanctions\n\n¶ 36 Foote argues that Rule 137 sanctions (Ill. S. Ct. R. 137(a) (eff. Jan. 1, 2018))\n\nshould be imposed on the Sheriff’s Office for filing pleadings not warranted by existing law—\n\nnamely, the motion to dismiss and the reply to Foote’s response to that motion. However,\n\nbecause Foote did not raise this argument in the trial court, he has forfeited it on appeal. See\n\nLewis v. OSF Healthcare System, 2022 IL App (4th) 220016, ¶ 60 (“It is well settled that issues\n\nnot raised in the trial court are forfeited and cannot be raised for the first time on appeal.”).\n\n¶ 37 III. CONCLUSION\n\n¶ 38 For the reasons stated, we affirm the trial court’s judgment.\n\n¶ 39 Affirmed.\n\n\n\n\n -9-\n\f"} {"dedup_key":"2022 IL App (5th) 190258","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (5th) 190258","case_name":"Hart v. Illinois State Police","court_level":"Appellate","appellate_district":"5th","year":2022,"county":"Madison","appellate_docket":"5-19-0258","circuit_docket":"18-MR-611","published":1,"authoring_justice":"Boie","statute":["FOIA"],"exemptions_cited":["7(1)(c)"],"public_body":"Illinois State Police","requesting_party":"Sandra Hart and Kenneth L. Burgess Sr.","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that the Illinois State Police could not withhold FOID card application and denial letters under FOIA exemptions. The court determined that section 7.5(v) does not apply to requests for one's own information and that section 7(1)(c) allows for the release of personal information with the subject's consent.","best_text_source":"Court Opinions - FOIA/Hart v. Illinois State Police, 2022 IL App (5th) 190258.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:44.797801","site_category":"General Records Exemptions","date_decided":"2022-02-18","site_url":"/cases/2022%20IL%20App%20(5th)%20190258/","text_url":"/case-text/2022%20IL%20App%20(5th)%20190258.txt","full_text":" Digitally signed by\n Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2023.01.10\n 10:17:18 -06'00'\n\n\n\n Hart v. Illinois State Police, 2022 IL App (5th) 190258\n\n\n\nAppellate Court SANDRA HART, Plaintiff-Appellee, v. THE ILLINOIS STATE\nCaption POLICE, Defendant-Appellant.–KENNETH L. BURGESS SR.,\n Plaintiff-Appellee, v. THE ILLINOIS STATE POLICE, Defendant-\n Appellant.\n\n\n\nDistrict & No. Fifth District\n Nos. 5-19-0258, 5-20-0421 cons.\n\n\n\nFiled February 18, 2022\n\n\n\nDecision Under Appeal from the Circuit Court of Madison County, Nos. 18-MR-611,\nReview 20-MR-608; the Hon. David W. Dugan and the Hon. Christopher P.\n Threlkeld, Judges, presiding.\n\n\n\nJudgment Affirmed.\n\n\nCounsel on Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,\nAppeal Solicitor General, and Valerie Quinn, Assistant Attorney General, of\n counsel), for appellant.\n\n Thomas G. Maag, of Maag Law Firm, LLC, of Wood River, for\n appellees.\n\f Panel PRESIDING JUSTICE BOIE delivered the judgment of the court,\n with opinion.\n Justices Welch and Wharton concurred in the judgment and opinion.\n\n\n OPINION\n\n¶1 In separate actions filed in the circuit court of Madison County, the plaintiffs, Sandra Hart\n and Kenneth L. Burgess Sr., filed complaints under the Freedom of Information Act (FOIA)\n (5 ILCS 140/1 et seq. (West 2018)), seeking the circuit court to compel the defendant, Illinois\n State Police (ISP), to produce documents related to the plaintiffs’ applications for firearm\n owners’ identification (FOID) cards pursuant to the Firearm Owners Identification Card Act\n (FOID Card Act) (430 ILCS 65/0.01 et seq. (West 2018)). ISP had denied the plaintiffs’ FOIA\n requests for the production of the documents stating that the documents were exempt from\n disclosure under section 7.5(v) of FOIA (5 ILCS 140/7.5(v) (West 2018)). Because these\n matters are of the same nature and involve the same issues on appeal, we consolidate these\n cases as a matter of judicial economy. Edwards v. Addison Fire Protection District\n Firefighters’ Pension Fund, 2013 IL App (2d) 121262, ¶ 41 (“Illinois courts favor\n consolidation of causes where it can be done as a matter of judicial economy.”).\n¶2 On motions for summary judgment, the circuit court held that ISP failed to carry its burden\n in demonstrating that section 7.5(v) of FOIA authorizes or directs ISP to withhold from the\n plaintiffs their own personal applications for a FOID card or the ISP’s denial letters 1 sent to\n the plaintiffs. As such, the circuit court entered summary judgments in favor of the plaintiffs\n and directed ISP to produce the documents along with awarding the plaintiffs’ fees and costs.\n¶3 ISP now appeals the circuit court’s judgments arguing that the circuit court erred in finding\n that the documents requested by the plaintiffs were not exempt from disclosure under section\n 7.5(v) of FOIA (5 ILCS 140/7.5(v) (West 2018)). ISP further argues in the Burgess case that\n the documents were exempt from disclosure because ISP was bound by a permanent injunction\n that prohibited the disclosure of the documents. For the following reasons, we affirm the circuit\n court’s judgments.\n\n¶4 BACKGROUND\n¶5 On August 31, 2018, Hart made a written request through counsel to ISP pursuant to FOIA\n for “any and all documents related to Ms. Hart’s FOID card, any and all applications for same,\n and any and all documentation related to any legal disabilities that have or may cause her to be\n ineligible for a FOID card.” 2 On May 6, 2020, Burgess made a written request to ISP pursuant\n to FOIA for “my file related to my Firearm Owners Identification Card application, as well as\n\n 1\n In the Hart case, the ISP’s letter at issue notified Hart of the revocation of her FOID card. In the\n Burgess case, Burgess’s FOIA request sought documents related to “the denial of my application”;\n however, Burgess’s appellee brief indicates the ISP’s letter at issue notified Burgess of the revocation\n of his FOID card. This court will refer to these two letters collectively as the “denial letters.”\n 2\n Hart’s written FOIA request to ISP also contained a request for “whatever documents you have\n showing the processing time for FOID appeals.” On February 22, 2019, Hart withdrew that portion of\n her FOIA request and, as such, it was not an issue in the lower court nor is it an issue on appeal.\n\n -2-\n\f specifically, any and all letters to me concerning the denial of my application and the reasons\n therefore.” The plaintiffs’ FOIA requests were denied by ISP. The letters 3 issued by ISP\n denying the plaintiffs’ FOIA requests cited and quoted section 7.5(v) of FOIA (id.) as the basis\n for the denials.\n¶6 On September 14, 2018, Hart filed a complaint in the circuit court, and on June 23, 2020,\n Burgess filed a complaint in the circuit court. Both complaints were filed pursuant to FOIA\n and requested that the circuit court compel ISP to produce the requested documents. In the\n Hart case, ISP filed a motion to dismiss on November 29, 2018, and Hart filed a response to\n ISP’s motion to dismiss and a cross-motion for summary judgment on December 10, 2018.\n The circuit court conducted a hearing and heard arguments on ISP’s motion to dismiss on\n February 22, 2019. On April 12, 2019, the circuit court entered a written order stating that the\n case was taken under advisement and directing ISP to file the documents responsive to Hart’s\n FOIA request under seal within 14 days. ISP complied with the circuit court’s order on May\n 17, 2019.\n¶7 On May 24, 2019, the circuit court entered a seven-page written order denying ISP’s\n motion to dismiss and granting Hart’s motion for summary judgment. The circuit court found\n that\n “what the legislature intended was to prevent a dissemination to or by third parties of\n the names and personal information of FOID applicants, and not the release of an\n applicant’s application or the ISP’s denial of the applicant’s application. A contrary\n interpretation would create an absurd result.”\n¶8 The circuit court’s written order of May 24, 2019, further stated that ISP had “failed to\n carry its burden in showing that 7.5(v) authorizes or directs ISP to withhold from the plaintiff\n her application for a FOIA card or its letter of denial.” As such, the circuit court directed ISP\n to produce true and accurate copies of “(1) the plaintiff’s Application for Firearm Owner’s\n Identification Card; (2) Letter of May 10, 2010 from [ISP] directed to plaintiff, together with\n the enclosures[4] thereto” within 30 days. ISP filed a notice appealing the circuit court’s May\n 24, 2019, order on June 21, 2019. 5 On March 5, 2020, the circuit court entered judgment in\n favor of Hart and against ISP and awarded costs and fees to Hart. The judgment also stated\n that the circuit court’s order of May 24, 2019, directing the disclosure of the documents,\n remained in effect but was stayed pending the completion of the appellate process.\n¶9 In the Burgess case, Burgess filed a motion for summary judgment on July 30, 2020.\n Burgess’s motion for summary judgment attached the circuit court’s order of May 24, 2019,\n that granted summary judgment in the Hart case. Burgess’s motion for summary judgment\n stated that he moved for summary judgment on the basis of law as explained in the circuit\n court’s May 24, 2019, order. ISP filed a cross-motion for summary judgment on August 27,\n 2020, and an amended cross-motion for summary judgment instanter on October 23, 2020.\n\n 3\n Electronic correspondence from ISP to Hart’s counsel dated September 12, 2018, and\n correspondence from ISP to Burgess dated May 19, 2020.\n 4\n The only enclosure to ISP’s letter dated May 10, 2010, was a self-addressed envelope for the return\n of Hart’s FOID card.\n 5\n ISP filed a motion to stay and hold in abeyance its appeal pending the supplementation of the\n circuit court’s disposition of the fees and costs. This court granted by ISP’s motion on September 19,\n 2019, and this appeal was reinstated by order of this court on March 23, 2020.\n\n -3-\n\f The circuit court held a hearing and issued a written order on October 23, 2020. The circuit\n court’s written order, in relevant part, stated as follows:\n “Argument had on Plaintiff’s motion for summary judgment and Defendant’s amended\n cross motion for summary judgment. For the reasons set forth in Judge Dugan’s order\n in Hart v ISP, Plaintiff’s motion granted, Defendant’s motion denied. Defendant to\n produce the letter and application within 30 days.”\n On November 20, 2020, the circuit court entered a written judgment in favor of Burgess and\n against ISP and awarded cost and fees to Burgess. On December 18, 2020, ISP filed a timely\n notice of appeal, and as stated above, we have consolidated the Burgess and Hart cases on\n appeal as a matter of judicial economy.\n\n¶ 10 ANALYSIS\n¶ 11 Before proceeding with the analysis, we note that ISP filed a suggestion of death in the\n Hart case on April 5, 2021. The suggestion of death alleged that a person with the same name,\n birthdate, and birthplace as Hart had died on April 26, 2020. As such, this court placed the Hart\n case in abeyance pending further order of the court and directed counsel for Hart to file a\n substitution of party for the decedent pursuant to section 2-1008(b) of the Code of Civil\n Procedure (735 ILCS 5/2-1008(b) (West 2020)), on or before July 5, 2021. Counsel for Hart\n did not contest the suggestion of death and no substitution of party was made within the time\n allotted or at any time during the pendency of this appeal.\n¶ 12 The death of the appellee, however, did not render this matter moot since a judgment for\n damages had been entered and a judgment survives the death of either party. Wedig v. Kroger\n Grocery & Baking Co., 278 Ill. App. 378, 381 (1935). Further, based upon the suggestion of\n death, this court determined that Hart was deceased at the time of the filing of the appellee’s\n brief. Since no substitution of the party was filed or any authority for a continued attorney-\n client relationship provided, counsel for Hart had no authority to file the appellee brief in this\n matter. See Robison v. Orthotic & Prosthetic Lab, Inc., 2015 IL App (5th) 140079, ¶ 12 (“An\n attorney’s employment and his authority are revoked by the death of his client, and an attorney\n cannot proceed where he does not represent a party to the action.”). As such, this court entered\n an order on September 29, 2021, striking the appellee’s brief in the Hart case and directing that\n the appeal be submitted for decision on the appellant’s brief only. See First Capitol Mortgage\n Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976) (“if the record is simple and\n the claimed errors are such that the court can easily decide them without the aid of an appellee’s\n brief, the court of review should decide the merits of the appeal”). Therefore, this court has not\n considered the appellee’s brief filed in the Hart case in its analysis of this consolidated appeal.\n¶ 13 We also note that the circuit court’s orders limited the documents to be disclosed by ISP to\n the plaintiffs’ applications and ISP’s denial letters. Hart’s initial FOIA request sought “any and\n all documents” and Burgess’s FOIA request sought “my file.” A review of the secured record\n that was before the circuit court in the Hart case 6 indicates that ISP possessed additional\n documents related to the revocation of Hart’s FOID card. We note that no party challenged the\n circuit court’s limitation of the documents to be disclosed in the lower court’s proceedings and\n\n 6\n There is nothing in the record on appeal indicating that ISP was required to provide the circuit\n court with all documents responsive to Burgess’s FOIA request. As such, this court is unaware of\n whether ISP possessed additional documents related to Burgess’s FOIA request.\n\n -4-\n\f that it is not an issue on appeal. As such, our analysis is confined to the circuit court’s finding\n that the plaintiffs’ own application for a FOID card and ISP’s denial letter were not prohibited\n from disclosure pursuant to section 7.5(v) of FOIA. See Huang v. Brenson, 2014 IL App (1st)\n 123231, ¶ 22 (“Failure to raise an issue in the trial court generally results in forfeiture of that\n issue on appeal.”); Hawkes v. Casino Queen, Inc., 336 Ill. App. 3d 994, 1004 (2003) (“Any\n issue that has not been sufficiently or properly presented to this court for review is waived.”).\n Therefore, we make no determinations or findings regarding whether any additional documents\n that may be in the possession of ISP related to a FOID application, the denial of a FOID\n application, or the revocation of a FOIA card are required to be disclosed pursuant to an\n individual’s FOIA request. We will now proceed to the merits of this appeal.\n¶ 14 ISP argues on appeal that the circuit court erred in determining that the plaintiffs’\n applications for a FOID card pursuant to the FOID Card Act and ISP’s denial letters were not\n exempt from disclosure under section 7.5(v) of FOIA (5 ILCS 140/7.5(v) (West 2018)). The\n interpretation of a statute presents a question of law, subject to de novo review. Sandholm v.\n Kuecker, 2012 IL 111443, ¶ 41. Under a de novo standard of review, this court does not defer\n to the lower court’s judgment or reasoning but performs the same analysis that the lower court\n would perform. Arthur v. Catour, 216 Ill. 2d 72, 78 (2005). We also review a circuit court’s\n grant of summary judgment under a de novo standard. Forsythe v. Clark USA, Inc., 224 Ill. 2d\n 274, 280 (2007).\n¶ 15 The primary objective of statutory construction is to ascertain and give effect to the\n legislature’s true intent and meaning. Sandholm, 2012 IL 111443, ¶ 41. “The language of the\n statute is the best indication of legislative intent, and our inquiry appropriately begins with the\n words used by the legislature.” Brucker v. Mercola, 227 Ill. 2d 502, 513 (2007). Where the\n statutory language is clear and unambiguous, it must be applied as written without resort to\n extrinsic aids of statutory construction. Id. In determining a statute’s plain meaning, a court\n may consider the problems sought to be remedied, the reason for the law, the purposes to be\n achieved, and the consequences of construing a statute one way or another in determining a\n statute’s plain meaning. People v. Gutman, 2011 IL 110338, ¶ 12.\n¶ 16 Further, all provisions of a statute should be viewed as a whole (Brucker, 227 Ill. 2d at\n 514), and all words and phrases must be interpreted in light of other relevant provisions of the\n statute and must not be construed in isolation. Sandholm, 2012 IL 111443, ¶ 41. Statutes are\n to be construed so that no word, clause, or sentence is rendered meaningless or superfluous.\n Gutman, 2011 IL 110338, ¶ 12.\n¶ 17 Section 1 of FOIA provides the public policy and legislative intent of FOIA and states, in\n relevant part, as follows:\n “Pursuant to the fundamental philosophy of the American constitutional form of\n government, it is declared to be the public policy of the State of Illinois that all persons\n are entitled to full and complete information regarding the affairs of government and\n the official acts and policies of those who represent them as public officials and public\n employees consistent with the terms of this Act. ***\n The General Assembly hereby declares that it is the public policy of the State of\n Illinois that access by all persons to public records promotes the transparency and\n accountability of public bodies at all levels of government. It is a fundamental\n obligation of government to operate openly and provide public records as expediently\n and efficiently as possible in compliance with this Act.” 5 ILCS 140/1 (West 2018).\n\n -5-\n\f¶ 18 Section 1.2 of FOIA further provides that “[a]ll records in the custody or possession of a\n public body are presumed to be open to inspection or copying.” Id. § 1.2. Therefore, in\n conducting our analysis, we must be mindful that it is the public policy of Illinois, and that\n there exists a statutory mandate, that public records are presumed to be open and accessible.\n Section 1.2 also places the burden of proving by clear and convincing evidence that a record\n is exempt from disclosure on the public body. Id. In line with section 1.2, the statutory\n exemptions contained in section 7 of FOIA “ ‘are to be read narrowly.’ ” Mancini Law Group,\n P.C. v. Schaumburg Police Department, 2021 IL 126675, ¶ 16 (quoting Lieber v. Board of\n Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997)).\n¶ 19 In this matter, ISP argues that the records requested by the plaintiffs are exempt under\n section 7.5(v) of FOIA, which states as follows:\n “§ 7.5. Statutory exemptions. To the extent provided for by the statutes referenced\n below, the following shall be exempt from inspection and copying:\n ***\n (v) Names and information of people who have applied for or received Firearm\n Owner’s Identification Cards under the Firearm Owners Identification Card Act or\n applied for or received a concealed carry license under the Firearm Concealed Carry\n Act, unless otherwise authorized by the Firearm Concealed Carry Act; and databases\n under the Firearm Concealed Carry Act, records of the Concealed Carry Licensing\n Review Board under the Firearm Concealed Carry Act, and law enforcement agency\n objections under the Firearm Concealed Carry Act.” 5 ILCS 140/7.5(v) (West 2018).\n¶ 20 The circuit court found that a narrow reading of the specific language of section 7.5(v)\n strongly suggested that\n “it does not encompass for purposes of exemption a FOID application that is requested\n by the applicant herself, nor communications authored by the ISP and previously served\n on the requesting applicant. The legislature employed the words ‘names’ and ‘people’\n in plural forms. This would suggest that the legislature addressed the possibility that\n absent such an exemption, the names of applicants and their personal information could\n be widely misused ***.”\n¶ 21 ISP argues that the plain language of section 7.5(v) exempts from disclosure “all names\n and information of people who have applied for or received FOID cards under the FOID Act”\n (emphasis in original) and that the circuit court improperly turned to legislative history to add\n an exception to the FOID Card Act not found in its plain terms. We disagree. As the circuit\n court noted, the legislature used the plural terms “names” and “people” and not the singular\n “name” or “person.” “ ‘Person’ ” is defined in section 2(b) of FOIA as “any individual,\n corporation, partnership, firm, organization or association, acting individually or as a group.”\n 5 ILCS 140/2(b) (West 2018). As such, the legislature could have used the singular term\n “person” in section 7.5(v), which would have incorporated by definition an individual or group\n but instead elected to use the plural term “people” indicating more than one individual. We\n also note that the legislature did not include a provision that the plural use of a term includes\n the singular that is familiar in other statutory schemes. See, e.g., 750 ILCS 50/1(G) (West\n 2020) (the Adoption Act stating, “The singular includes the plural and the plural includes the\n singular and the ‘male’ includes the ‘female’, as the context of this Act may require.”); 215\n ILCS 5/2(m) (West 2020) (the Illinois Insurance Code stating, “Personal pronouns include all\n genders, the singular includes the plural and the plural includes the singular.”); 620 ILCS 5/24\n\n -6-\n\f (West 2020) (the Illinois Aeronautics Act stating, “For the purposes of this Act the singular\n shall include the plural, and the plural the singular.”).\n¶ 22 FOIA does use the singular term “person” in other sections. See, e.g., 5 ILCS 140/3(a)\n (West 2018) (“a public body may not grant to any person or entity”); id. § 3.1(a) (“the public\n body may require the person”); id. § 5 (“electronic data processing may be obtained in a form\n comprehensible to persons lacking knowledge of computer language”). However, section\n 7.5(v) uses the plural term “people,” and this court may not construe any word of a statute as\n superfluous or meaningless. Collins v. Board of Trustees of the Firemen’s Annuity & Benefit\n Fund of Chicago, 155 Ill. 2d 103, 116 (1993). To state that “people” indicates a single\n individual would render the word “people” meaningless. Therefore, we find that the word\n “people” by its plain meaning necessitates more than a single individual.\n¶ 23 We must also interpret section 7.5(v) in light of other relevant provisions of the statute.\n Sandholm, 2012 IL 111443, ¶ 41.\n¶ 24 Section 7(1)(c) of FOIA states:\n “Personal information contained within public records, the disclosure of which would\n constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is\n consented to in writing by the individual subjects of the information.” (Emphasis\n added.) 5 ILCS 140/7(1)(c) (West 2018).\n¶ 25 The above provision indicates that the legislature, in prohibiting the release of personal\n information, provided an exception wherein an individual could consent in writing to the\n release of their own information. Section 7.5(v) only prohibits the names and information of\n people who have applied for or received FOID cards and contains no prohibition of the release\n of any specific document, such as an application or denial letter. The only prohibition on the\n release of specific records contained in section 7.5(v) relates to the Firearm Concealed Carry\n Act (430 ILCS 66/1 et seq. (West 2018)). As such, section 7.5(v) prohibits the release of\n personal information of individuals who have applied for or received FOID cards, and section\n 7(1)(c) indicates that an individual can consent in writing to the release of their own personal\n information. In this matter, the plaintiffs were requesting their own applications and denial\n letters, and their written FOIA requests indicated a consent in writing by the subject of the\n information. Therefore, when interpreting section 7.5(v) in light of section 7(1)(c), we find that\n the plaintiffs’ applications and denial letters were not prohibited from disclosure where the\n plaintiffs consented to the release of their own information.\n¶ 26 The circuit court also found the following to be consistent with the plain language of\n section 7.5(v):\n “The disclosure of the names and personal information, such as addresses, of FOID\n card holders discloses by implication those who are not card holders and presumably\n not gun owners. The potential for placing those individuals at risk from crime simply\n by reason of their choice not to own a gun was a concern raised by Illinois State Senator\n Dillard. He envisioned that disclosure of the names and addresses of FOID card holders\n would ‘give burglars a map to systematically burglarize our neighborhoods and our\n farms.’ [Citation.] Regardless of the validity of that concern, it nevertheless illustrates\n that what the legislature intended was to prevent a dissemination to or by third parties\n of the names and personal information of FOID applicants, and the not the release of\n an applicant’s application or the ISP’s denial of the applicant’s application. A contrary\n interpretation would create an absurd result.”\n\n -7-\n\f¶ 27 “[A] court presumes that the General Assembly did not intend absurdity, inconvenience,\n or injustice in enacting legislation.” People v. Casler, 2020 IL 125117, ¶ 24. Here, Burgess\n states that “it makes absolute sense for the government to keep private names and addresses of\n FOID card holders” but argues that he already knows his own name, address, and that his FOID\n card was revoked. Burgess argues that he “just wants to know why” (emphasis in original) in\n order to seek an appeal of the revocation. We agree.\n¶ 28 The plaintiffs here are simply seeking another copy of their own information, which they\n have consented to be released, and are not seeking the “names and information of people.”\n Moreover, attempting to appeal an ISP’s decision without first knowing the basis for that\n decision would cause an inconvenience to both the individual and ISP since it would be\n impossible for an individual to deny or demonstrate the removal of a liability that was the basis\n for the ISP’s decision. Thus, we conclude that interpreting section 7.5(v) to prohibit the release\n of the plaintiffs’ own applications and denial letters would create an absurd result.\n¶ 29 ISP also argues that “there is no way for a public body to verify whether the individual\n who submits a written FOIA request is actually the person whose information is being sought”\n and thus disclosure of the information would defeat the General Assembly’s concern that\n individuals might access FOID information for unlawful purposes. We find this argument\n unpersuasive as the individual’s written FOIA request, by necessity to identify the application\n and denial letter sought, should provide ISP with sufficient information to demonstrate that the\n requester was seeking his/her own information. If not, section 7(c) of FOIA requires a written\n consent from the individual for the release of his/her own information, and if the individual’s\n FOIA request is insufficient to demonstrate a written consent for his/her own information,\n additional verifying information could be required before the release of the information.\n¶ 30 Finally, ISP argues in the Burgess case that the documents related to Burgess’s FOID card\n application were exempt from disclosure because ISP was bound by a permanent injunction\n that prohibited their disclosure. On December 5, 2011, the Honorable Chief Judge Michael E.\n Brandt of the Tenth Judicial Circuit, Peoria County, Illinois, entered an agreed order for\n permanent injunction in the matter of Illinois State Rifle Ass’n v. Illinois State Police, No. 11-\n CH-151 (Cir. Ct. Peoria County). The agreed order for permanent injunction contained the\n following provisions:\n “6. The Freedom of Information Act (5 ILCS 140/1 et seq.), and as amended,\n exempts certain information from disclosure, inspection, or copying. Pursuant to the\n Freedom of Information Act, the State Police, its officers, employees, and agents, shall\n be prohibited from releasing, in response to a request made under the Freedom of\n Information Act, any personally identifying information—as defined infra in ¶ 7—\n containing any of the following:\n a. Records identifying, directly or indirectly, any person who has applied for a\n FOID card, who has been issued or denied a FOID card, or whose FOID card has\n expired or been revoked;\n ***\n 7. As used in this Order, the term ‘personally identifying information’ means\n information submitted to the State Police related to a FOID card application or the FTIP\n program that identifies or describes a person, including but not limited to an\n individual’s name, street address, telephone number, electronic mail address, date of\n birth, physical description, photograph, medical or mental health information, Social\n\n -8-\n\f Security number, driver’s license number, state identification number, FOID card\n number, or other similarly unique identifying information.”\n ISP raised this issue in its amended motion for summary judgment and argued the issue at the\n circuit court’s hearing on October 23, 2020. The circuit court, however, made no finding\n regarding the permanent injunction and granted summary judgment based on the ruling in the\n Hart case, which did not address the issue.\n¶ 31 We acknowledge that a public body does not improperly withhold records pursuant to\n FOIA when the public body is barred from disclosing them under an existing court order. See\n In re Appointment of Special Prosecutor, 2019 IL 122949, ¶ 66 (holding that “a lawful court\n order takes precedence over the disclosure requirements of FOIA”). However, the permanent\n injunction specifically states that the injunction is pursuant to FOIA, and for the reasons stated\n above, we have found that FOIA does not prohibit the release of the plaintiffs’ applications\n and denial letters. Consequently, it is for these same reasons, we find that the permanent\n injunction does not prohibit the release of the plaintiffs’ application and denial letters. We\n further note that an individual’s request for his/her own information does not identify, either\n directly or indirectly, a person that is not ascertained in the request.\n¶ 32 Based on the above, we find that section 7.5(v) of FOIA does not prohibit the release of\n the plaintiffs’ application or denial letters since the word “people” by its plain meaning\n necessitates more than a single individual and section 7(1)(c) provides for the release of\n personal information with the written consent of the individual that is the subject of the\n information. We further find that the permanent injunction entered in the matter of Illinois\n State Rifle Ass’n v. Illinois State Police does not prohibit the release of the plaintiffs’\n application or denial letters for the same reasoning since the permanent injunction was entered\n pursuant to FOIA.\n\n¶ 33 CONCLUSION\n¶ 34 For the foregoing reasons, we affirm the judgments of the circuit court.\n\n¶ 35 Affirmed.\n\n\n\n\n -9-\n\f"} {"dedup_key":"2022 IL App (5th) 210108-U","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (5th) 210108-U","case_name":"Shane A. Lyberger v. Troy D. Cannon","court_level":"Appellate","appellate_district":"5th","year":2022,"county":"Marion","appellate_docket":"5-21-0108","circuit_docket":"20-CH-40","published":0,"authoring_justice":"Welch","statute":["FOIA"],"exemptions_cited":[],"public_body":"Marion County Coroner","requesting_party":"Shane A. Lyberger","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court affirmed the dismissal of the plaintiff's FOIA complaint, finding the request moot because the defendant had provided all responsive records in his possession. The court held that the nonexistence of requested documents or lack of possession is a valid defense to a FOIA complaint.","best_text_source":"Court Opinions - FOIA/Lyberger v. Cannon, 2021 IL App (5th) 210108-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:45.589601","site_category":"Search & Production","date_decided":"2022-01-03","site_url":"/cases/2022%20IL%20App%20(5th)%20210108-U/","text_url":"/case-text/2022%20IL%20App%20(5th)%20210108-U.txt","full_text":" NOTICE\n 2022 IL App (5th) 210108-U\n NOTICE\n Decision filed 01/03/22. The\n This order was filed under\n text of this decision may be\n NO. 5-21-0108 Supreme Court Rule 23 and is\n changed or corrected prior to\n the filing of a Petition for not precedent except in the\n\n Rehearing or the disposition of IN THE limited circumstances allowed\n the same. under Rule 23(e)(1).\n\n\n APPELLATE COURT OF ILLINOIS\n\n FIFTH DISTRICT\n______________________________________________________________________________\n\nSHANE A. LYBERGER, ) Appeal from the\n ) Circuit Court of\n Plaintiff-Appellant, ) Marion County.\n )\nv. ) No. 20-CH-40\n )\nTROY D. CANNON, in His Official Capacity )\nas Marion County Coroner, ) Honorable\n ) Stanley M. Brandmeyer,\n Defendant-Appellee. ) Judge, presiding.\n______________________________________________________________________________\n\n JUSTICE WELCH delivered the judgment of the court.\n Justices Moore and Vaughan concurred in the judgment.\n\n ORDER\n\n¶1 Held: We affirm the Marion County circuit court’s dismissal of the plaintiff’s\n complaint because the plaintiff’s Freedom of Information Act request was\n moot.\n\n¶2 The plaintiff, Shane A. Lyberger, appeals the Marion County circuit court’s\n\ndismissal of his complaint filed pursuant to section 11 of the Freedom of Information Act\n\n(FOIA) (5 ILCS 140/11 (West 2020)). For the reasons that follow, we affirm.\n\n¶3 I. BACKGROUND\n\n¶4 On March 30, 2020, the plaintiff sent a FOIA request to the Marion County Board’s\n\nemail address. The plaintiff requested:\n 1\n\f “Any record that would indicate the financial status [as of today’s date March\n 30, 2020] of the Marion County Coroner’s Office, including but not limited to the\n Coroner’s personal funds not provided by the county budget, but more specifically\n to include funds the Coroner’s Office has accrued from services provided to private\n businesses such as funeral homes, doctor’s offices, etc.”\n\nThe plaintiff also sent a blind carbon copy of this email containing the FOIA request to the\n\ndefendant, Troy D. Cannon, who served as the Marion County Coroner.\n\n¶5 At the time of the plaintiff’s FOIA request, Illinois Governor J.B. Pritzker had\n\nissued a Gubernatorial Disaster Proclamation due to Covid-19 and had issued several\n\nexecutive orders, including, but not limited to, a “stay at home” order, which, inter alia,\n\nrestricted nonessential travel and permitted local governments to determine what would be\n\nconsidered essential governmental functions that would be exempted from the stay-at-\n\nhome order. During this time, the federal government had implemented its “15 days to\n\nslow the spread” campaign, later expanded to “30 days to slow the spread.” The federal\n\ngovernment urged citizens to follow the direction of local officials and to work from home,\n\nif possible, to avoid the spread of Covid-19.\n\n¶6 As a result, the county employee that normally maintained the Marion County\n\nBoard’s email account was out of the office when the plaintiff submitted his FOIA request.\n\nOn or about April 9, 2020, Steven Fox, the Marion County Clerk, realized this and began\n\nforwarding the emails from the county board account to his own. Upon seeing the\n\nplaintiff’s email, Fox forwarded the request for financial records to the Marion County\n\nTreasurer’s Office. Fox then immediately responded to the plaintiff’s email by explaining\n\nthat the employee who maintained the board’s email account was out of the office until\n\nApril 30, 2020. Fox also provided the plaintiff with an income statement for the coroner’s\n 2\n\foffice and advised him that the treasurer’s office was working on getting him additional\n\ninformation.\n\n¶7 Marion County Treasurer Gary Purcell maintained the financial accounts for the\n\ncounty, including the financial accounts for elected offices such as the coroner’s office.\n\nOn or about April 9, 2020, Purcell was notified of the plaintiff’s FOIA request by Fox.\n\nAlthough the treasurer’s office was operating in a reduced capacity due to Covid-19,\n\nPurcell and his staff began to gather the responsive records as quickly as possible.\n\n¶8 On April 15, 2020, Purcell provided the plaintiff with the budget for the coroner’s\n\noffice. He also explained that his bookkeeper would provide additional information.\n\nPurcell advised the plaintiff that when the coroner received a payment, it was transferred\n\nto the county clerk/board secretary and then to the treasurer’s office, where it was deposited\n\ninto either the coroner’s fees account or the coroner’s death certificates account. Purcell\n\nfurther noted that those were the only two accounts for the coroner’s office outside of\n\ngeneral fund line items that were budgeted for the coroner’s office.\n\n¶9 Andrea Mallett, who served as the bookkeeper for the Marion County Treasurer’s\n\nOffice, maintained the bank accounts for county elected offices, including the coroner’s\n\noffice. The coroner’s office had two accounts, the coroner’s fees account and the coroner’s\n\ndeath surcharge grant account. On April 16, 2020, Mallett provided the plaintiff with\n\ncopies of the general ledger reports detailing the funds in both of the coroner’s accounts.\n\nThe records responsive to the plaintiff’s request were sent to him in a series of emails from\n\nApril 9, 2020, through April 16, 2020. After receiving these records, the plaintiff sent a\n\nfollow-up email to Mallett on April 16, 2020, requesting the ending balance for each of the\n 3\n\fcoroner’s accounts as of March 31, 2020. She provided this information to him on the\n\nsame day it was requested.\n\n¶ 10 When the defendant received the plaintiff’s emailed FOIA request, he advised the\n\nplaintiff that his office was not functioning in an administrative capacity at that time due\n\nto the Covid-19 crisis. The defendant also informed the plaintiff that he would not be able\n\nto respond to the request until the crisis had passed and his office had reopened for business.\n\nThe financial records sought through the plaintiff’s FOIA request were maintained by the\n\nMarion County Treasurer’s Office; thus, the defendant did not have electronic access to\n\nthe records. Shortly after receiving the plaintiff’s request, the defendant conferred with the\n\ntreasurer’s office and learned that the plaintiff had been provided with copies of the records\n\nhe sought. The defendant reviewed the records provided to the plaintiff by the treasurer’s\n\noffice and concluded that the coroner’s office had no additional records responsive to the\n\nplaintiff’s FOIA request. As such, the defendant did not provide any additional information\n\nto the plaintiff.\n\n¶ 11 On September 16, 2020, the plaintiff filed suit against the defendant, alleging a\n\nFOIA violation. The defendant filed a motion to dismiss pursuant to 2-619 of the Code of\n\nCivil Procedure (Code) (735 ILCS 5/2-619 (West 2020)), along with supporting documents\n\nand affidavits. A hearing was held, during which the trial court heard arguments on the\n\ndefendant’s motion. Thereafter, the court granted the motion to dismiss via docket entry,\n\nfinding, inter alia, that the “FOIA request has been fulfilled by the Country Treasurer and\n\nClerk’s Office, [and] that [the plaintiff] is not therefore entitled to a wholly separate\n\n\n 4\n\fresponse from this Defendant.” The plaintiff filed a motion to reconsider the dismissal,\n\nwhich the court denied. This appeal followed.\n\n¶ 12 II. ANALYSIS\n\n¶ 13 On appeal, the plaintiff argues that the trial court erred in granting the defendant’s\n\nmotion to dismiss his complaint. We disagree.\n\n¶ 14 Before considering whether the trial court properly dismissed the plaintiff’s\n\ncomplaint, we must set out the parameters of our review. Here, the defendant moved to\n\ndismiss the plaintiff’s complaint pursuant to section 2-619 of the Code. See id. The\n\npurpose of a section 2-619 motion to dismiss is to dispose of issues of law and easily proved\n\nissues of fact early in the litigation. In re Appointment of Special Prosecutor, 2019 IL\n\n122949, ¶ 28. A motion to dismiss pursuant to section 2-619(a)(9) of the Code (735 ILCS\n\n5/2-619(a)(9) (West 2020)) permits the involuntary dismissal of an alleged claim that is\n\nbarred by other affirmative matters that avoids the legal effect of or defeats the claim. In re\n\nAppointment of Special Prosecutor, 2019 IL 122949, ¶ 28. The movant admits the legal\n\nsufficiency of the complaint but asserts that some affirmative matter defeats the claim. Id.\n\nWhen ruling on a motion to dismiss pursuant to section 2-619, a court must interpret all\n\npleadings and supporting documents in favor of the nonmoving party. Id. “An affirmative\n\nmatter is something in the nature of a defense which negates the cause of action completely\n\nor refutes crucial conclusions of law or conclusions of material fact contained in or inferred\n\nfrom the complaint.” (Internal quotation marks omitted.) Id. We review a dismissal under\n\nsection 2-619 de novo. Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003).\n\nFurthermore, we may affirm the trial court’s judgment on any basis that is supported by\n 5\n\fthe record. Stoll v. United Way of Champaign County, Illinois, Inc., 378 Ill. App. 3d 1048,\n\n1051 (2008).\n\n¶ 15 FOIA provides for the inspection and copying of public records in the custody or\n\npossession of a public body. See 5 ILCS 140/3 (West 2020). FOIA is intended to “open\n\ngovernmental records to the light of public scrutiny.” (Internal quotation marks omitted.)\n\nSouthern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006).\n\nAs such, we presume public records are open and accessible for purposes of FOIA. Id. at\n\n415-16. “[C]ourts are to construe FOIA liberally, and exemptions to disclosure are to be\n\ninterpreted narrowly.” Martinez v. Cook County State’s Attorney’s Office, 2018 IL App\n\n(1st) 163153, ¶ 14.\n\n¶ 16 The defendant argues that the trial court properly dismissed the plaintiff’s complaint\n\nbecause the FOIA request was moot, as it had already been fulfilled. “A claim is moot\n\nwhen no actual controversy exists or events occur which make it impossible for a court to\n\ngrant effectual relief.” Duncan Publishing, Inc. v. City of Chicago, 304 Ill. App. 3d 778,\n\n782 (1999). “Actions will be dismissed as moot once plaintiffs have secured what was\n\noriginally sought.” Id. “Once an agency produces all the records related to a plaintiff’s\n\nrequest, the merits of a plaintiff’s claim for relief, in the form of production of information,\n\nbecomes moot.” Id.\n\n¶ 17 Here, the plaintiff sent his FOIA request via email to both the defendant and the\n\nMarion County Board. The plaintiff asked for:\n\n “Any record that would indicate the financial status [as of today’s date March\n 30, 2020] of the Marion County Coroner’s Office, including but not limited to the\n Coroner’s personal funds not provided by the county budget, but more specifically\n 6\n\f to include funds the Coroner’s Office has accrued from services provided to private\n businesses such as funeral homes, doctor’s offices, etc.”\n\nAlthough there was a brief delay due to the Covid-19 pandemic, Fox forwarded the request\n\nto the Marion County Treasurer’s Office. Fox then sent the plaintiff an income statement\n\nfor the office and advised him that the treasurer’s office was working to get him additional\n\ninformation. Thereafter, Purcell and his staff began to gather the records responsive to the\n\nplaintiff’s request as quickly as possible.\n\n¶ 18 Purcell then provided the plaintiff with the budget for the coroner’s office. He\n\nadvised the plaintiff that when the coroner received a payment, it was transferred to the\n\ncounty clerk/board secretary and then to the treasurer’s office, where it was deposited into\n\neither the coroner’s fees account or the coroner’s death certificates account. These were\n\nthe only two bank accounts kept for the coroner’s office, aside from the budgeted items\n\nthat were excluded from the plaintiff’s request. Mallett subsequently provided the plaintiff\n\nwith copies of the general ledger reports detailing the funds in the coroner’s accounts.\n\nWhen the plaintiff requested the ending balance for each of the accounts as of March 31,\n\n2020, Mallett responded with the balances on the same day.\n\n¶ 19 After learning from the treasurer’s office that the plaintiff had been given the records\n\nhe sought, and determining that the coroner’s office had no additional responsive records,\n\nthe defendant did not provide any additional information to the plaintiff. Because the\n\nplaintiff’s FOIA request was fulfilled and the defendant had no additional responsive\n\nrecords, no additional relief can be granted, and the plaintiff’s claim is moot. Accordingly,\n\nthe trial court properly granted the defendant’s motion to dismiss.\n\n 7\n\f¶ 20 The plaintiff contends that additional documents have been withheld from him.\n\nHowever, the plaintiff’s contention that additional documents exist is not based on any\n\nfactual basis, but rather on his assertion that it is “simply unbelievable” that the coroner’s\n\noffice would not keep the type of records requested. However, FOIA does not compel\n\npublic bodies to turn over information they do not normally retain. Chicago Tribune Co.\n\nv. Department of Financial & Professional Regulation, 2014 IL App (4th) 130427, ¶ 34.\n\n“The nonexistence of requested documents is a cognizable affirmative defense to a\n\ncomplaint grounded in FOIA.” (Internal quotation marks omitted.) Barner v. Fairburn,\n\n2019 IL App (3d) 180742, ¶ 12.\n\n¶ 21 Here, the affidavits of Fox and Mallett revealed that they provided to the plaintiff\n\nall the responsive records that the treasurer’s office possessed. Similarly, the defendant’s\n\naffidavit asserted that he conferred with the treasurer’s office and learned that the plaintiff\n\nhad been provided with copies of the records he sought. The defendant also maintained in\n\nhis affidavit that he reviewed the records provided to the plaintiff by the treasurer’s office\n\nand concluded that the coroner’s office had no additional records responsive to the\n\nplaintiff’s request. The defendant also informed the plaintiff that the financial records\n\nsought were maintained by the treasurer’s office, and the defendant did not have electronic\n\naccess to the records. As such, the records requested by the plaintiff either did not exist or\n\nwere not in the defendant’s possession. Based on these facts, the defendant could not have\n\nviolated FOIA by failing to turn such documents over to the plaintiff. Therefore, the trial\n\ncourt properly granted the defendant’s section 2-619 motion to dismiss the complaint.\n\n\n 8\n\f¶ 22 III. CONCLUSION\n\n¶ 23 For the reasons stated herein, we affirm the judgment of the Marion County circuit\n\ncourt.\n\n\n\n¶ 24 Affirmed.\n\n\n\n\n 9\n\f"} {"dedup_key":"2022 IL App (5th) 210220-U","dedup_key_type":"neutral_citation","neutral_citation":"2022 IL App (5th) 210220-U","case_name":"Nolan Watson v. Illinois Department of Corrections","court_level":"Appellate","appellate_district":"5th","year":2022,"county":"Jefferson","appellate_docket":"5-21-0220","circuit_docket":"19-MR-217","published":0,"authoring_justice":"Vaughan","statute":["FOIA"],"exemptions_cited":[],"public_body":"Illinois Department of Corrections","requesting_party":"Nolan Watson","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court affirmed the circuit court's denial of attorney fees and costs under section 11(i) of FOIA. The court held that because the plaintiff did not prevail on the merits of his FOIA complaint, he was not entitled to an award of fees and costs.","best_text_source":"Court Opinions - FOIA/Watson v. Illinoois Department of Corrections, 2022 IL App (5th) 210220-U .pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:45.589613","site_category":"Fees & Burdensome Requests","date_decided":"2022-06-21","site_url":"/cases/2022%20IL%20App%20(5th)%20210220-U/","text_url":"/case-text/2022%20IL%20App%20(5th)%20210220-U.txt","full_text":" 2022 IL App (5th) 210220-U\n NOTICE\n NOTICE\n Decision filed 06/21/22. The\n This order was filed under\n text of this decision may be NO. 5-21-0220\n Supreme Court Rule 23 and is\n changed or corrected prior to\n the filing of a Petition for not precedent except in the\n\n Rehearing or the disposition of\n IN THE limited circumstances allowed\n the same. under Rule 23(e)(1).\n APPELLATE COURT OF ILLINOIS\n\n FIFTH DISTRICT\n______________________________________________________________________________\n\nNOLAN WATSON, ) Appeal from the\n ) Circuit Court of\n Plaintiff-Appellant, ) Jefferson County.\n )\nv. ) No. 19-MR-217\n )\nILLINOIS DEPARTMENT OF )\nCORRECTIONS, ) Honorable\n ) Evan L. Owens,\n Defendant-Appellee. ) Judge, presiding.\n______________________________________________________________________________\n\n JUSTICE VAUGHAN delivered the judgment of the court.\n Justices Cates and Wharton concurred in the judgment.\n\n ORDER\n\n¶1 Held: The circuit court did not err in denying plaintiff fees and costs under section\n 11(i) of the Freedom of Information Act (5 ILCS 140/11(i) (West 2018)) where\n the court entered adverse judgments against plaintiff.\n\n¶2 Plaintiff appeals from the circuit court’s dismissal of his action for preliminary injunction\n\nthat requested the disclosure of records under the Freedom of Information Act (FOIA) (5 ILCS\n\n140/1 et seq. (West 2018)) and the denial of his motion to reconsider. On appeal, plaintiff only\n\nasserts that the circuit court erred in denying fees and costs under section 11(i) of FOIA (id.\n\n§ 11(i)). For the following reasons, we affirm.\n\n\n\n\n 1\n\f¶3 I. BACKGROUND\n\n¶4 Plaintiff, Nolan Watson, an inmate at Big Muddy River Correctional Center (Big Muddy),\n\nmade several requests for his medical records while incarcerated at that facility. Each time, Watson\n\nwas notified that he must follow the proper administrative process and fill out forms 0286 and\n\n0240 to obtain his medical records.\n\n¶5 In November 2019, prior to successfully obtaining his medical records through the\n\navailable administrative process, Watson filed an action for preliminary injunctive relief against\n\ndefendant, Illinois Department of Corrections (IDOC), and Karen Akright, 1 a Wexford Health\n\nSources, Inc., employee contracted to provide IDOC with certain medical and record services at\n\nBig Muddy. Watson alleged that Akright violated FOIA by unlawfully withholding public\n\ndocuments from him, which he described as two 0286 offender request forms, two 0240\n\nauthorization for release of records forms, and all documents pertaining to his mental health history\n\nbetween August 28, 2018, and September 24, 2019. In addition to requesting the court order\n\nAkright to disclose these documents, Watson sought $110.34 in costs and $5000 in civil penalties.\n\n¶6 At the end of December 2019, Watson submitted the proper forms to obtain his medical\n\nrecords. On January 29, 2020, he submitted an IDOC 0296 Authorization for Payment form to\n\nobtain copies of the records, but his account had insufficient funds to cover the cost of the copies.\n\nBig Muddy’s medical records office asked Watson whether he wanted the 50 pages that he was\n\nentitled to free of charge. Watson responded that he preferred to wait until a payment posted to his\n\naccount. In February 2020, Watson had sufficient funds to cover the cost of the copies, and on\n\nFebruary 25, 2020, the medical records office mailed him all of the medical records he sought.\n\n\n\n\n 1\n On July 23, 2020, the court dismissed defendant Akright without prejudice. Watson does not challenge this\ndismissal, and Akright is not a party to this appeal.\n 2\n\f¶7 In the meantime, on January 28, 2020, Watson filed an amended complaint, alleging that\n\nAkright had no authority to deny a FOIA request for his medical records and IDOC forms. He\n\nagain requested his medical records and additional copies of IDOC forms 0286 and 0240. He also\n\nfiled a motion requesting IDOC provide him with copies of the authority cited in its filings because\n\nhe had limited access to the law library at Big Muddy. On February 13, 2020, the court directed\n\nIDOC to provide Watson copies of any case law, statute, or other cited material that it may\n\nreference in future pleadings.\n\n¶8 On May 5, 2020, Watson sought leave to file a supplemental pleading, which the court\n\ngranted. In that filing, he alleged that he submitted a FOIA request in April 2020 demanding copies\n\nof various rules in the Illinois Administrative Code (Administrative Rules) to the library agent at\n\nBig Muddy but did not receive a response. Watson attached a copy of the list of 25 items he\n\nrequested from the library agent, including “all the 504’s,” “all the 501’s,” and “all the 502C’s.”\n\nWatson further alleged that, because of the COVID pandemic, Big Muddy went on administrative\n\nquarantine status, and many of the services in the prison law library became unavailable. In\n\nparticular, he alleged that inmates were not permitted to copy provisions of the Administrative\n\nRules or IDOC’s written directives. As relief, Watson sought an injunction directing IDOC to\n\nallow inmates to make copies of any public record.\n\n¶9 IDOC filed a motion to dismiss the initial complaint and supplemental pleading pursuant\n\nto section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2020)). IDOC\n\nexplained that the medical records Watson sought were exempt from disclosure under FOIA\n\nbecause IDOC had an administrative procedure in place for inmates to obtain their medical records,\n\nand Watson already received the records he requested once he followed the proper administrative\n\nprocedure. It also argued that Watson’s supplemental complaint should be dismissed because the\n\n\n 3\n\fmaterials he requested were available in the law library, except for Administrative Directive\n\n05.50.150, which relates to prison security and falls under another exemption in FOIA.\n\n¶ 10 Among other supporting exhibits, IDOC attached the response IDOC’s FOIA officer sent\n\nto Watson, dated April 23, 2020, advising him that his FOIA request for Administrative Directive\n\n05.50.150 was denied pursuant to section 7(1)(e) of the FOIA (5 ILCS 140/7(1)(e) (West 2018))\n\nbecause it related to prison security, and that production of the remaining rules and directives was\n\ndenied pursuant to section 7(1)(e-5) (id. § 7(1)(e-5)) because those materials were available in the\n\nprison library. IDOC further attached an affidavit from Kendall Harris, the library assistant at Big\n\nMuddy, who explained that during administrative quarantine, he responded to inmate requests for\n\nAdministrative Rules or directives by making a copy, delivering it to the inmate for viewing, and\n\nthen later retrieving the copy. Upon learning that Watson sought access to these materials, Harris\n\ninformed Watson of this process, but Watson responded that he did not want to be given copies\n\nfor viewing.\n\n¶ 11 Watson filed a response to IDOC’s motion to dismiss. Watson argued that while IDOC\n\nallowed limited viewing of the Administrative Rules sought, the rules were not available to copy.\n\nHe therefore concluded that exemptions 7(1)(e-5) and 7(1)(e-7) were inapplicable because copies\n\nof the documents were not available at the prison’s law library. Watson also argued that section\n\n7(1)(e-7) did not apply to his medical records because the administrative process to obtain the\n\nrecords was ineffectual.\n\n¶ 12 The circuit court granted IDOC’s motion to dismiss in a docket entry dated February 11,\n\n2021. It found that plaintiff’s medical records were not subject to production under FOIA and\n\ndenied Watson’s motion for penalties and costs. It further noted, “all requested materials have been\n\nproduced (most outside of FOIA).”\n\n\n 4\n\f¶ 13 Watson filed a motion to reconsider. He asserted that the production of documents\n\nresponsive to his requests was incomplete, because IDOC refused to provide copies of the\n\nrequested administrative rules and directives. IDOC opposed the motion to reconsider, explaining\n\nthat Harris had attempted to give Watson access to the requested materials to view, but Watson\n\nrejected that attempt. On June 9, 2021, Watson informed the court, via letter, that he had been\n\ntransferred to Dixon Correctional Center.\n\n¶ 14 A hearing on Watson’s motion to reconsider was held, via Zoom, on July 12, 2021. On the\n\nsame day, a docket entry was entered. In the docket entry, the court denied Watson’s motion to\n\nreconsider. The court explained that although it denied the motion, it directed the State to supply\n\nWatson with “updated copies” of all of the Administrative Rules in section 504 and Rule 430.30\n\nbecause Watson “argue[d] that these rules are not updated at the facilities and has now been moved\n\nfor [the] 7th time.” The court found that IDOC complied with FOIA and acted in good faith. It\n\ndenied injunctive relief and costs. The court also noted that it advised the parties that “this is a\n\nfinal judgment” and IDOC was to submit an order.\n\n¶ 15 On July 19, 2021, the court entered an order that stated:\n\n “1. Plaintiff’s Motion to Reconsider as to his requests for Administrative Rules\n\n 504 and 430.30 is GRANTED. Defendant is ordered to print and send to Plaintiff\n\n all of 20 IL Admin Code § 504 *** and a copy of Administrative Rule 430.30.\n\n 2. Plaintiff’s Motion to Reconsider as to his request for all other\n\n Administrative Rules and Directives *** and his request for his mental health\n\n records is DENIED.\n\n 3. Plaintiff’s Motion to Reconsider as to his request for costs and civil\n\n penalties is DENIED.”\n\n\n 5\n\fWatson timely appealed.\n\n¶ 16 II. ANALYSIS\n\n¶ 17 On appeal, Watson argues that the circuit court erred in denying his request for costs. He\n\nasserts that the docket entries of February 11, 2021, where the circuit court noted that IDOC\n\ndisclosed records to Watson, and July 12, 2021, where the circuit court ordered IDOC to provide\n\nWatson with copies of certain Administrative Rules, support the conclusion that he prevailed twice\n\nand was therefore entitled to costs under section 11(i) of FOIA (id. § 11(i)). He also contends the\n\ncircuit court confused the legal standard of section 11(j) with 11(i) of FOIA in denying costs. We\n\nreview a circuit court’s decision regarding a party’s entitlement to fees and cost under FOIA for\n\nan abuse of discretion. Chicago Tribune Co. v. Cook County Assessor's Office, 2018 IL App (1st)\n\n170455, ¶ 46.\n\n¶ 18 Under FOIA, public bodies are required to promptly provide copies of any public record—\n\nexcept for those exempted—to any person who submits a request. 5 ILCS 140/3 (West 2018). The\n\npurpose of this requirement is to promote “transparency and accountability of public bodies at all\n\nlevels of government.” Id. § 1.\n\n¶ 19 FOIA permits any person who was denied access by a public body to inspect or copy a\n\npublic record to file suit for injunctive or declaratory relief. Id. § 11(a). If a person “prevails” in\n\nsuch proceedings, “the court shall award such person reasonable attorney’s fees and costs.” Id.\n\n§ 11(i).\n\n¶ 20 It appears caselaw conflicts on what “prevails” means under section 11 of FOIA. The\n\nSecond District, in Rock River Times v. Rockford Public School District 205, 2012 IL App (2d)\n\n110879, ¶ 18, found parties “prevail” if they obtained “judicially sanctioned relief.” In Uptown\n\nPeople’s Law Center v. Department of Corrections, 2014 IL App (1st) 130161, ¶ 20, the First\n\n\n 6\n\fDistrict disagreed with Rock River Times. The Uptown People’s Law Center court determined a\n\ncourt order was not necessary to entitle a party to costs under section 11(i) and that a party could\n\nbe entitled to costs and fees based on a defendant’s voluntary change in position. Uptown People’s\n\nLaw Center, 2014 IL App (1st) 130161, ¶ 21.\n\n¶ 21 We need not weigh in on this conflict, as we find both cases are distinguishable. Unlike\n\nRock River Times and Uptown People’s Law Center, the court here entered two adverse judgments\n\nagainst Watson.\n\n¶ 22 On February 11, 2021, the circuit court did not order IDOC to provide any materials, and\n\ninstead, merely noted that Watson had received the materials he requested. The record shows the\n\nproduction of these records was not based on IDOC’s voluntary change in position; rather, IDOC\n\nprovided the records after Watson followed the administrative procedure IDOC always required.\n\nThe circuit court explicitly granted the motion to dismiss, finding that Watson was not entitled to\n\nthe requested documents under FOIA. Such judgment is adverse to Watson.\n\n¶ 23 We also do not find the fact that the court directed IDOC to produce updated copies of the\n\nAdministrative Rules after the hearing on defendant’s motion to reconsider renders Watson a\n\nprevailing party. Admittedly, the July 19, 2021, order regarding the motion to reconsider is\n\ninartfully drafted. In construing a trial court’s order, however, we seek to determine the trial court’s\n\nintent. People v. Lee, 344 Ill. App. 3d 851, 855 (2003). A court order must be interpreted in its\n\nentirety with reference to other parts of the record, including pleadings, motions, and issues before\n\nthe court. Granville Beach Condominium Ass’n v. Granville Beach Condominiums, Inc., 227 Ill.\n\nApp. 3d 715, 720 (1992). We must also “examine the situation as it existed at the rendition of the\n\njudgment.” Virzint v. Beranek, 202 Ill. App. 3d 511, 514 (1990).\n\n\n\n\n 7\n\f¶ 24 The July 12, 2021, docket entry reveals that the circuit court intended its final judgment to\n\ndeny the motion to reconsider. It expressly found IDOC complied with FOIA and acted in good\n\nfaith. The circuit court directed the State to produce certain Administrative Rules based only on\n\nthe fact that Watson moved to a different facility that did not have the updated version of the\n\nAdministrative Rules. The circuit court’s explicit denial of defendant’s motion to reconsider—\n\nwhich asserted IDOC violated FOIA by withholding certain documents—is an adverse judgment\n\nto Watson.\n\n¶ 25 We also reject Watson’s argument that the court impermissibly merged the standards for\n\ncosts and fees in section 11(i) of FOIA with the standards for penalties in section 11(j) of FOIA.\n\nIn a FOIA action, a court shall impose a civil penalty upon the public body if it determines that\n\npublic body “willfully and intentionally failed to comply with [FOIA], or otherwise acted in bad\n\nfaith.” 5 ILCS 140/11(j) (West 2018). The requirement of finding bad faith is not required to award\n\nfees and costs; rather, the court shall award fees and costs if the “person seeking the right to inspect\n\nor receive a copy of a public record prevails in a proceeding under [section 11 of FOIA].” Id.\n\n§ 11(i).\n\n¶ 26 We do not find the record supports the conclusion that the circuit court denied costs based\n\non its finding that IDOC acted in good faith. Watson requested the circuit court to impose civil\n\npenalties on IDOC in his amended complaint and his motion to reconsider. The circuit court’s\n\nreference to IDOC’s good faith in its February 11, 2021, and July 12, 2021, docket entries therefore\n\nrelated to the court’s basis to deny penalties against IDOC, not its denial of Watson’s request to\n\naward costs.\n\n¶ 27 Although the circuit court directed the State to produce a few of the requested documents\n\ndue to Watson’s current situation in a different facility, the court denied Watson’s claim that he\n\n\n 8\n\fwas entitled to certain documents under FOIA on the merits. As such, he did not prevail under\n\nsection 11 of FOIA. We therefore affirm the circuit court’s denial of Watson’s request for costs\n\nunder section 11(i) of FOIA.\n\n¶ 28 III. CONCLUSION\n\n¶ 29 Watson was not entitled to costs under section 11(i) of FOIA where the circuit court\n\ndismissed Watson’s FOIA complaint on the merits. Accordingly, we affirm.\n\n\n\n¶ 30 Affirmed.\n\n\n\n\n 9\n\f"} {"dedup_key":"2023 IL App (1st) 211656","dedup_key_type":"neutral_citation","neutral_citation":"2023 IL App (1st) 211656","case_name":"Thomas v. County of Cook","court_level":"Appellate","appellate_district":"1st","year":2023,"county":"Thomas v.","appellate_docket":"1-21-1656","circuit_docket":"19-CH-6865","published":1,"authoring_justice":"Coghlan","statute":["FOIA"],"exemptions_cited":["7(1)(c)"],"public_body":"County of Cook","requesting_party":"Oily Thomas","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the denial of a FOIA request for autopsy photographs, holding that such records are exempt from disclosure under section 7(1)(c) of FOIA because their release would constitute an unwarranted invasion of personal privacy. The court further held that the plaintiff failed to demonstrate that the County acted in bad faith, thereby justifying the denial of civil penalties.","best_text_source":"Court Opinions - FOIA/Thomas v. County of Cook, 2023 IL App (1st) 211656.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:46.093125","site_category":"General Records Exemptions","date_decided":"2023-10-10","site_url":"/cases/2023%20IL%20App%20(1st)%20211656/","text_url":"/case-text/2023%20IL%20App%20(1st)%20211656.txt","full_text":" Digitally signed\n by Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2024.03.18\n 10:54:33 -05'00'\n\n\n\n Thomas v. County of Cook, 2023 IL App (1st) 211656\n\n\n\nAppellate Court OILY THOMAS, Plaintiff-Appellant, v. THE COUNTY OF COOK,\nCaption Defendant-Appellee.\n\n\n\nDistrict & No. First District, First Division\n No. 1-21-1656\n\n\n\nFiled October 10, 2023\nRehearing denied October 19, 2023\n\n\n\nDecision Under Appeal from the Circuit Court of Cook County, No. 19-CH-6865; the\nReview Hon. Sophia H. Hall, Judge, presiding.\n\n\n\nJudgment Affirmed.\n\n\nCounsel on Robert L. Caplan, of Clarendon Hills, for appellant.\nAppeal\n Kimberly M. Foxx, State’s Attorney, of Chicago (Cathy McNeil Stein,\n Silvia Mercado Masters, and Prathima Yeddanapudi, Assistant State’s\n Attorneys, of counsel), for the People.\n\n\n\nPanel JUSTICE COGHLAN delivered the judgment of the court, with\n opinion.\n Presiding Justice Lavin and Justice Hyman concurred in the judgment\n and opinion.\n\f OPINION\n\n¶1 For the reasons that follow, we affirm the judgment of the circuit court.\n\n¶2 I. BACKGROUND\n¶3 In 1992, plaintiff Oily Thomas was convicted of first degree murder after the June 4, 1991,\n shooting of Edward McComb and sentenced to 75 years’ imprisonment. See People v. Thomas,\n 364 Ill. App. 3d 91, 93 (2006). On January 14, 2019, pursuant to the Freedom of Information\n Act (FOIA) (5 ILCS 140/1 et seq. (West 2018)), Thomas sent a letter to defendant County of\n Cook (County), requesting all postmortem photographs, autopsy photographs, and X-rays of\n McComb from the County’s medical examiner.\n¶4 On January 17, 2019, the County responded, through registered health information\n administrator Mary E. Marik, that it was in possession of 38 autopsy photographs, but 35 of\n the photographs were “exempt from disclosure” under section 7(1)(c) of FOIA because they\n depicted “a decedent postmortem” and constituted an “unwarranted invasion of personal\n privacy.” The County explained that such an invasion of privacy “means the disclosure of\n information that is highly personal or objectionable to a reasonable person and in which the\n subject’s right to privacy outweighs any legitimate public interest in obtaining the\n information.” Citing Public Access Opinion No. 10-003, the County stated that “courts have\n determined that autopsy photographs are records that are highly personal and their release\n would be objectionable to reasonable persons.”\n¶5 On March 22, 2019, Thomas challenged the denial of access to 35 of the requested\n photographs, claiming that “a forensic examination of the requested documents *** is expected\n to show that the objective evidence from the documents irrefutably impeaches the testimony\n of [the eye]witnesses.” Thomas also asserted that “the personal privacy of the McComb family\n *** is far outweighed by the reasonable claim that [the] records could have an innocent man\n released from prison.”\n¶6 On June 5, 2019, Thomas filed a complaint alleging that defendant violated FOIA by\n denying his requests for all 38 of the autopsy photographs. Thomas alleged that the violation\n was done willfully and intentionally or otherwise in bad faith and requested declaratory and\n injunctive relief, attorney fees, and penalties.\n¶7 On June 12, 2019, Thomas submitted a second FOIA request for “all of the records and\n physical objects, without limitation” related to the death of McComb. 1\n¶8 The County filed its response to Thomas’s complaint on August 22, 2019, in which it again\n asserted that 35 of the autopsy photographs were “exempt from disclosure pursuant to 5 ILCS\n 140/7(1)(c)” because they “depicted a decedent postmortem.”\n¶9 The parties filed cross-motions for summary judgment. Thomas argued, inter alia, that the\n County’s “refusal to produce the 35 photographs was willful and intentional or otherwise in\n bad faith” and that the County’s denial “subjects the [County] to statutory penalties.” The\n County responded, in relevant part, that, pursuant to section 7(1)(c), it had “complied with its\n\n\n 1\n Thomas’s second request is not a part of the record on appeal but is quoted in an e-mail from Marik\n to Thomas’s attorney, attached as an exhibit to the County’s “Motion for Summary Judgment.”\n\n -2-\n\f FOIA obligations and properly withheld Edward McComb’s postmortem photographs” and\n that there was no “willful and intentional violation of FOIA” under section 11(j).\n¶ 10 On December 10, 2020, the trial court granted Thomas’s motion for summary judgment in\n part and ordered the production of all 38 autopsy photographs. The court also granted the\n County’s motion in part, finding that “the record is devoid of any evidence of willful or\n intentional conduct by Defendant in withholding the phot[o]s or that Defendant otherwise\n acted in bad faith in withholding the requested autopsy photographs as exempt under 5 ILCS\n 140/7(1)(c).”\n¶ 11 Thomas filed a motion for reconsideration of the denial of penalties, arguing that the record\n contains “evidence of willful or intentional conduct in not producing the requested materials,\n or other evidence of bad faith on the part of the defendant.” Specifically, Thomas alleged that\n “[t]he correspondence of record in this case shows that the defendant consciously and\n deliberately (willfully and intentionally) refused to turn over the requested documents.”\n¶ 12 At the August 25, 2021, hearing on Thomas’s motion for reconsideration, the County\n argued that the medical examiner properly denied Thomas’s request, based on the privacy\n interest exemption. The County acknowledged that there was a “balancing test,” but argued\n that it was not required to produce the photographs simply because Thomas disagreed with the\n results of the test. The County also argued that knowingly raising an exemption could not\n constitute a willful and intentional violation of FOIA, even if the exemption was later\n determined to be inapplicable. Thomas’s motion to reconsider was denied.\n\n¶ 13 II. ANALYSIS\n¶ 14 Thomas argues that the trial court’s finding that the County did not “willful[ly] and\n intentional[ly]” fail to comply with FOIA or otherwise act in bad faith constituted an erroneous\n interpretation of section 11(j) of FOIA. The County argues that the trial court’s finding was\n not against the manifest weight of the evidence, where the County reasonably believed that the\n withheld photographs were exempt under section 7(1)(c) of FOIA.\n¶ 15 Section 11(j) of FOIA states in relevant part: “If the court determines that a public body\n willfully and intentionally failed to comply with this Act, or otherwise acted in bad faith, the\n court shall also impose upon the public body a civil penalty of not less than $2,500 nor more\n than $5,000 for each occurrence.” (Emphasis added.) 5 ILCS 140/11(j) (West 2018). “ ‘To\n warrant the imposition of a civil penalty under section 11(j), the public body not only must\n have intentionally failed to comply with the FOIA but must have done so deliberately, by\n design, and with a dishonest purpose.’ ” Edgar County Watchdogs v. Joliet Township, 2023 IL\n App (3d) 210520, ¶ 30 (quoting Williams v. Bruscato, 2021 IL App (2d) 190971, ¶ 14).\n¶ 16 A trial court’s finding that a public body willfully, intentionally, and in bad faith failed to\n comply with FOIA is reviewed under the manifest-weight-of-the-evidence standard,\n “regardless of whether the underlying facts are disputed.” Rock River Times v. Rockford Public\n School District 205, 2012 IL App (2d) 110879, ¶ 48. A trial court’s decision is against the\n manifest weight of the evidence “only when an opposite conclusion is apparent or when\n findings appear to be unreasonable, arbitrary, or not based on evidence.” Judgment Services\n Corp. v. Sullivan, 321 Ill. App. 3d 151, 154 (2001).\n¶ 17 In this case, the trial court found that the County did not willfully, intentionally, and in bad\n faith fail to comply with FOIA, stating that the record was entirely “devoid” of any evidence\n\n\n -3-\n\f of such conduct. In denying Thomas’s motion to reconsider, the court further explained that\n the County did not act willfully, intentionally, or in bad faith “through its conduct with respect\n to the response to the request and the conduct in raising an exemption which was presented to\n the Court.” We agree.\n¶ 18 Although the argument was ultimately rejected by the trial court, the County reasonably\n asserted that the autopsy photographs were exempt from FOIA disclosure obligations under\n section 7(1)(c). This section exempts the following from disclosure under FOIA:\n “Personal information contained within public records, the disclosure of which would\n constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is\n consented to in writing by the individual subjects of the information. ‘Unwarranted\n invasion of personal privacy’ means the disclosure of information that is highly\n personal or objectionable to a reasonable person and in which the subject’s right to\n privacy outweighs any legitimate public interest in obtaining the information.” 5 ILCS\n 140/7(1)(c) (West 2018).\n¶ 19 In support of the claimed exemption, the County cited Public Access Opinion No. 10-003\n (2010 Ill. Att’y Gen. Pub. Access Op. 10-003, https://foiapac.ilag.gov/content/pdf/opinions/\n 2010/2010-003.pdf (last visited Sept. 29, 2023) [https://perma.cc/U7AL-V6CC]). “While\n Attorney General Opinions are not binding on the courts, a well-reasoned opinion of the\n Attorney General is entitled to considerable weight ***.” Burris v. White, 232 Ill. 2d 1, 8\n (2009); 5 ILCS 140/9.5(f) (West 2018). In Public Access Opinion No. 10-003, the Attorney\n General concluded that, based on section 7(1)(c) of FOIA, “the release of the post-mortem\n photographs” of decedents to newspaper reporters “would constitute an unwarranted invasion\n of the surviving family members’ personal privacy.” 2010 Ill. Att’y Gen. Pub. Access Op. 10-\n 003, at 11. The Attorney General noted that “courts have determined that autopsy photographs\n are records that are highly personal and their release would be objectionable to reasonable\n persons.” Id. at 9.\n¶ 20 In reaching its opinion, the Attorney General relied on National Archives & Records Adm’n\n v. Favish, 541 U.S. 157 (2004). In Favish, the United States Supreme Court held that a\n deceased person’s family members have a privacy interest in preventing the disclosure of the\n deceased’s death-scene photographs that could be properly considered exempt under federal\n FOIA exemption 7(C) (5 U.S.C. § 552(b)(7)(C) (2000)), which excuses from disclosure\n records that “ ‘could reasonably be expected to constitute an unwarranted invasion of personal\n privacy.’ ” Favish, 541 U.S. at 168-71 (quoting 5 U.S.C. § 552(b)(7)(C) (2000)). The Supreme\n Court explained that “[f]amily members have a personal stake in honoring and mourning their\n dead and objecting to unwarranted public exploitation that, by intruding upon their own grief,\n tends to degrade the rites and respect they seek to accord to the deceased person who was once\n their own.” Id. at 168.\n¶ 21 In the instant case, the record does not support Thomas’s assertion that the County’s\n objection to releasing the autopsy photographs was motivated by bad faith. Therefore, the trial\n court properly denied Thomas’s request for civil penalties.\n\n\n\n\n -4-\n\f¶ 22 III. CONCLUSION\n¶ 23 For the reasons set forth herein, we affirm the judgment of the circuit court of Cook County.\n\n¶ 24 Affirmed.\n\n\n\n\n -5-\n\f"} {"dedup_key":"2023 IL App (1st) 211657","dedup_key_type":"neutral_citation","neutral_citation":"2023 IL App (1st) 211657","case_name":"Glynn v. Department of Corrections","court_level":"Appellate","appellate_district":"1st","year":2023,"county":"Cook","appellate_docket":"1-21-1657","circuit_docket":"20-CH-5370","published":1,"authoring_justice":"Lampkin","statute":["FOIA"],"exemptions_cited":["7(1)(e)"],"public_body":"Department of Corrections","requesting_party":"Ivan Glynn","disposition":"reversed_and_remanded","relevance":"relevant","summary_source":"generated","summary":"The appellate court reversed the circuit court's grant of summary judgment to the Department of Corrections regarding a FOIA request for security video footage. The court held that the circuit court erred by failing to conduct an in camera review to determine if the requested footage was exempt under section 7(1)(e) as records related to the security of a correctional institution.","best_text_source":"Court Opinions - FOIA/Glynn v. Department of Corrections, 2023 IL App (1st) 211657.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:46.179999","site_category":"General Records Exemptions","date_decided":"2023-03-02","site_url":"/cases/2023%20IL%20App%20(1st)%20211657/","text_url":"/case-text/2023%20IL%20App%20(1st)%20211657.txt","full_text":" Digitally signed\n by Reporter of\n Decisions\n Reason: I attest\n Illinois Official Reports to the accuracy\n and integrity of\n this document\n Appellate Court Date: 2024.01.05\n 12:51:28 -06'00'\n\n\n\n Glynn v. Department of Corrections, 2023 IL App (1st) 211657\n\n\n\nAppellate Court IVAN GLYNN, Plaintiff-Appellant, v. THE DEPARTMENT OF\nCaption CORRECTIONS, Defendant-Appellee.\n\n\n\nDistrict & No. First District, Fourth Division\n No. 1-21-1657\n\n\n\nFiled March 2, 2023\n\n\n\nDecision Under Appeal from the Circuit Court of Cook County, No. 20-CH-5370; the\nReview Hon. Anna M. Loftus, Judge, presiding.\n\n\n\nJudgment Reversed and remanded.\n\n\nCounsel on Matthew Topic, Josh Loevy, Merrick Wayne, and Shelley Geiszler, of\nAppeal Loevy & Loevy, of Chicago, for appellant.\n\n Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,\n Solicitor General, and Chaya M. Citrin and Evan Siegel, Assistant\n Attorneys General, of counsel), for appellee.\n\n\n\nPanel PRESIDING JUSTICE LAMPKIN delivered the judgment of the\n court, with opinion.\n Justices Hoffman and Martin concurred in the judgment and opinion.\n\f OPINION\n\n¶1 Plaintiff Ivan Glynn sued defendant, the Department of Corrections (DOC), seeking\n disclosure under Illinois’s Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West\n 2020)) of security video footage from the Joliet Treatment Center. The parties filed cross-\n motions for summary judgment, and the circuit court, after declining to conduct an in camera\n review of the video footage, granted summary judgment in favor of DOC and against Glynn.\n¶2 On appeal, Glynn argues the circuit court erred by (1) applying broadly the FOIA\n exemption for records related to or affecting the security of correctional institutions, (2) ruling\n that DOC’s affidavit was sufficient to prove the footage was exempt by clear and convincing\n evidence, and (3) holding that the existence of blind spots alone in prison surveillance footage\n was sufficient to exempt it from disclosure under FOIA.\n¶3 For the reasons that follow, we reverse the circuit court’s grant of summary judgment in\n favor of DOC and against Glynn and remand this matter for further proceedings. 1\n\n¶4 I. BACKGROUND\n¶5 In November 2019, Glynn sent DOC a FOIA request for audio and video footage from the\n security cameras of the dayroom of the Joliet Treatment Center (Joliet) on November 11, 2019,\n and any footage of dorm 7 on November 12, 2019.\n¶6 In December 2019, DOC denied the request, stating that DOC does not maintain or possess\n audio footage, and the video footage was exempt from inspection and copying pursuant to\n section 7(1)(e) of FOIA, which exempts from inspection and copying “[r]ecords that relate to\n or affect the security of correctional institutions and detention facilities.” 5 ILCS 140/7(1)(e)\n (West 2018).\n¶7 DOC cited a nonbinding April 21, 2014, determination letter issued by the Public Access\n Bureau (PAB) of the Office of the Illinois Attorney General, which concluded that disclosure\n of video footage from inside a correctional institution to a correctional officer depicting an\n incident in which he was injured would jeopardize security because it “would reveal blind\n spots that inmates could exploit to evade detection of actions that could endanger other inmates\n and/or staff members.”\n¶8 In August 2020, Glynn sued DOC, and the parties briefed cross-motions for summary\n judgment.\n¶9 DOC submitted an index of the records to which it denied access. 2 The index listed three\n video files. According to the index, two of those files, which were from two different cameras\n of the dayroom on November 11, 2019, showed portions of the dayroom, inmates within the\n dayroom, the position of prison guards, and the process for moving an inmate out of the\n dayroom. The third video, which was from a camera in dorm 7 on November 12, 2019, showed\n portions of dorm 7, the position and movement of prison guards, and the process for moving\n\n 1\n In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this\n appeal has been resolved without oral argument upon the entry of a separate written order.\n 2\n DOC also stated that, pursuant to its retention policy, security camera video footage that does not\n reflect any incident is automatically purged after 30 days. As such, DOC no longer possessed some of\n the video responsive to Glynn’s request.\n\n -2-\n\f inmates from cells. DOC maintained that these surveillance videos were exempt from\n disclosure under FOIA’s section 7(1)(e) because disclosure would jeopardize the security of\n the facility. In support of its motion, DOC attached the affidavit of Joel Diers and three\n nonbinding determination letters from the PAB, dated May 22, 2013, April 21, 2014, and July\n 20, 2016. In the alternative, DOC asked the court to conduct an in camera inspection of the\n videos if the court found that DOC’s affidavit and the PAB letters failed to meet DOC’s burden\n to establish by clear and convincing evidence that the requested records were exempt from\n disclosure.\n¶ 10 In his affidavit, Diers averred that he was legal counsel for DOC and held this position for\n 13 years. He was familiar with the security camera system used by Joliet, which is a\n correctional facility. Its security camera system collected only video footage without any\n audio. In the course of his employment, Diers reviewed hundreds of videos from the cameras\n within DOC’s facilities, and none of these videos contained audio. Diers averred that the three\n videos responsive to Glynn’s request revealed the layout and structure of the dayroom and\n dorm 7 and the positioning of DOC staff members, such as prison guards, within these areas.\n The videos also showed the timing of staff movement and prisoner movement, including the\n process for moving prisoners.\n¶ 11 Diers averred that “[m]ost significantly, the footage would allow individuals to determine\n the range of the facility’s security cameras for the Dayroom and Dorm 7, which would expose\n areas that are not covered by these cameras (‘Blind spots’).” Diers stated that exposure of these\n blind spots would provide individuals with the knowledge of where dangerous acts, harm to\n others, or unpermitted activity could occur without detection from the security cameras. Diers\n averred that disclosure would also give individuals the knowledge of potential times and\n locations where these activities could occur without detection from DOC’s staff because the\n individuals would know approximately when and where prison guards were present in those\n locations. Diers averred that these activities could be dangerous and harmful to others, placing\n DOC’s staff and other inmates at significant risk. Diers stated that DOC properly withheld the\n video footage pursuant to FOIA’s section 7(1)(e) because disclosure of the information\n contained in the footage would adversely affect the security of Joliet.\n¶ 12 The three PAB determination letters concluded that video recordings of correctional\n centers’ dining halls and a cellblock were exempt from disclosure under FOIA’s section 7(1)(e)\n because the recordings captured most, but not all, of the areas in question and thus would reveal\n blind spots that inmates could exploit to evade detection of actions that could endanger other\n inmates and staff members. In reaching this conclusion, the PAB reviewed the video recordings\n at issue in all three matters.\n¶ 13 In his motion for partial summary judgment, Glynn argued, inter alia, that DOC failed to\n prove by clear and convincing evidence that disclosure would affect security because DOC’s\n claim that the footage revealed blind spots was flawed. To support this argument, Glynn cited\n the affidavit of Patrick C. Eddington, who worked for nearly 20 years in federal service dealing\n with intelligence and intelligence oversight matters, including nearly 9 years as a professional\n imagery analyst with the National Photographic Interpretation Center. He worked as a CIA\n analyst for several years, using multiple forms of imagery derived from multiple imaging\n platforms in the course of his analysis of military, internal security, and international events.\n He worked for then-United States Congress Representative Rush Holt for about 10 years\n evaluating the efficacy, safety, and constitutionality of various federal agency programs that\n\n -3-\n\f used surveillance technologies. As a research fellow at the Cato Institute, Eddington researched\n and wrote about surveillance technology.\n¶ 14 In his affidavit, Eddington challenged Diers’s statement that releasing the surveillance\n footage would allow individuals to determine the range of security cameras and reveal their\n blind spots. Eddington stated that multiple pieces of information—including the camera’s field\n of view under factory settings, whether the camera was zoomed in, the camera’s placement\n and type of lens (wide angle, fish eye, etc.), use of software to enhance the field of view or\n resolution, and the number of cameras at the area in question—were necessary to determine\n whether an individual camera had any blind spots. Eddington averred that DOC’s evidence did\n not indicate whether the cameras were concealed, and any person who could see the cameras\n in use could already determine with a reasonable degree of certainty the existence, extent, and\n location of any blind spots. Eddington averred that even if a viewer of the footage could\n definitively establish any blind spots, other cameras in the same room could cover those other\n areas not visible on the requested cameras. Furthermore, Eddington averred that anyone\n present “can look and see for themselves where blind spots may be,” citing the “simple maxim,\n ‘If I can’t see the camera lense [sic], the camera can’t see me.’ ” Also, any person present could\n already see for themselves the positioning and movement of DOC staff and the movement of\n prisoners within those areas, and viewing these things in person was the most effective way to\n learn the locations of blind spots, staff, or prisoners. Eddington did not state that he viewed the\n videos at issue or the locations in question.\n¶ 15 Glynn also supported his motion with an April 17, 2015, nonbinding determination letter\n from the PAB. In that matter, DOC had denied a request for all records related to a 2010\n investigation of an incident that did not occur within the prison, arguing that a plain reading of\n FOIA’s section 7(1)(e) allowed for a mere relation to the security of a correctional facility to\n render records exempt from disclosure. This letter concluded, inter alia, that DOC failed to\n meet its burden to prove that the records were exempt from disclosure under section 7(1)(e) of\n FOIA because it applies only when a public body demonstrates that disclosure of a requested\n record would pose a potential security risk to a correctional facility. Finally, Glynn asked the\n circuit court to defer ruling on the issue of civil penalties until the court resolved the merits of\n whether DOC violated FOIA.\n¶ 16 On June 25, 2021, the court heard oral argument on the parties’ cross-motions for summary\n judgment. The court granted DOC’s motion and denied Glynn’s motion. Accordingly, the court\n did not address Glynn’s request for civil penalties. The court found that DOC’s affidavit\n established by clear and convincing evidence that the video footage directly related to and\n affected the security of the correctional institution, and thus DOC met its burden to prove the\n requested footage was exempt from disclosure under section 7(1)(e). The court noted that the\n language of section 7(1)(e) was “quite broad” and not qualified. However, even under a\n narrower construction of section 7(1)(e)—i.e., that “related to” meant that a requested record\n would pose a potential security risk to a correctional facility—the court would still rule in favor\n of DOC. The court found that Diers’s affidavit on behalf of DOC established that the footage\n revealed the layout and structure of the dayroom and dorm 7, the position and movement of\n DOC staff members and guards within those areas, prisoner movement, and the process for\n moving prisoners. The court also found that Diers’s affidavit established that viewing the\n footage would reveal the range of the security cameras in the dayroom and dorm 7 and thus\n expose the cameras’ blind spots, thereby establishing that release of the footage would create\n\n\n -4-\n\f a potential security risk because individuals with knowledge of the blind spots could cause\n harm without detection from DOC staff.\n¶ 17 The court stated that unlike Diers, who had 13 years’ experience with DOC, had reviewed\n hundreds of videos from DOC security cameras, and knew the locations and reviewed the\n footage at issue here, Glynn’s affiant, Eddington, did not view the footage or the locations at\n issue. The court also stated that Eddington’s statement that an individual needed more\n information (like the camera’s field of view under factory settings, the type of camera lens,\n whether software enhancements or the zoom function were used) than merely viewing the\n footage to determine the blind spots was inconsistent with his statement that any person “who\n can see the cameras in use can already determine with a reasonable degree of certainty whether\n any camera blind spots exist and the extent and location of those blind spots.” The court\n afforded the declarations of DOC, an agency, a presumption of good faith and found that the\n proven existence of blind spots in this matter sufficiently established that the footage directly\n related to and affected the security of the correctional institution.\n¶ 18 The court stated that an in camera review of the footage would not be effective because\n the court would need to do a site visit to see the rooms in question to understand the footage\n and Diers’s affidavit, which was entitled to a presumption of good faith, established his\n personal knowledge and that the footage did show blind spots. The court added that Glynn’s\n arguments about previous disclosures of security camera footage by other correctional\n institutions were neither relevant nor compelling.\n¶ 19 Glynn moved the court to reconsider, arguing that (1) newly discovered evidence from July\n 2, 2021, showed that the Illinois State Police released surveillance camera footage from a DOC\n facility of an officer beating an inmate; (2) DOC’s interpretation of section 7(1)(e) creates the\n absurd result of shielding all prison security footage, including footage of guards abusing\n prisoners, from public scrutiny; (3) the court erroneously stated that viewing the footage would\n reveal information about the type of lenses the cameras used, the aperture settings, and whether\n any software enhancements were used, but DOC did not make this claim or present evidence\n to support it; and (4) the court stated that before it would consider DOC’s previous release of\n surveillance footage as evidence favoring disclosure, the court needed information about the\n footage length, but that information was in the record.\n¶ 20 The parties briefed the motion. On November 18, 2021, the court held oral argument on\n the motion and denied it. The court stated that Glynn misconstrued the court’s findings that it\n needed more information about the circumstances of previous security camera footage\n disclosures (i.e., whether the disclosures were made pursuant to FOIA, a settlement, or\n discovery) before the court could consider the relevance of Glynn’s arguments regarding those\n disclosures. Furthermore, Glynn misconstrued the court’s quote of text from Chicago Sun-\n Times v. Chicago Transit Authority, 2021 IL App (1st) 192028, ¶ 50, regarding camera lens\n types, aperture settings, and software enhancements as the court’s evidentiary findings and\n ruling in the instant case. Also, the court did not conclude that there was a per se exception for\n security footage under section 7(1)(e) when the footage reveals blind spots. Rather, the court\n looked at DOC’s claim on a case-by-case basis. The court found that Diers’s affidavit was\n specific and detailed, not generic, and his conclusions were supported by facts. Conversely,\n the court did not give credit to Eddington’s affidavit.\n\n\n\n\n -5-\n\f¶ 21 Glynn timely appealed. 3\n\n¶ 22 II. ANALYSIS\n¶ 23 This case arises from the disposition of cross-motions for summary judgment. Summary\n judgment is proper when the pleadings, depositions, admissions, and affidavits show that there\n is no genuine issue of material fact and that the moving party is entitled to judgment as a matter\n of law. 735 ILCS 5/2-1005(c) (West 2020). Where the parties have filed cross-motions for\n summary judgment, they have conceded that there are no genuine issues of material fact and\n have agreed that only questions of law are involved. Nationwide Financial, LP v. Pobuda,\n 2014 IL 116717, ¶ 24. In such a situation, the parties request that the court decide the issues as\n a matter of law. Id. We review de novo the trial court’s judgment on cross-motions for\n summary judgment. Id.; see Thomas v. Weatherguard Construction Co., 2015 IL App (1st)\n 142785, ¶ 63 (under de novo review, the reviewing court performs the same analysis the trial\n court would perform).\n¶ 24 The Illinois Supreme Court has stated that\n “FOIA expressly declares its underlying public policy and legislative intent.\n Section 1 provides that all persons are entitled to full and complete information\n regarding the affairs of government and the official acts and policies of those who\n represent them as public officials and public employees consistent with the terms of\n this Act. [Citation.] Section 1 explains that [s]uch access is necessary to enable the\n people to fulfill their duties of discussing public issues fully and freely, making\n informed political judgments and monitoring government to ensure that it is being\n conducted in the public interest. [Citation.] Consequently, section 1 provides that [i]t\n is a fundamental obligation of government to operate openly and provide public records\n as expediently and efficiently as possible in compliance with this Act. [Citation.]\n Based on this clear expression of legislative intent, this court has held that public\n records are presumed to be open and accessible. [Citation.] FOIA is to be liberally\n construed to achieve the goal of providing the public with easy access to government\n information. [Citation.] Consequently, FOIA’s exceptions to disclosure are to be\n construed narrowly so as not to defeat the intended statutory purpose. [Citation.] Thus,\n when a public body receives a proper request for information, it must comply with that\n request unless one of FOIA’s narrow statutory exemptions applies.” (Internal quotation\n marks omitted.) In re Appointment of Special Prosecutor, 2019 IL 122949, ¶¶ 24-25.\n If a public body invokes a FOIA exemption, it “has the burden of proving that [the record] is\n exempt by clear and convincing evidence.” 5 ILCS 140/11(f) (West 2020).\n\n¶ 25 A. Statutory Construction\n¶ 26 The dispute here involves section 7(1)(e) of FOIA, which provides that the following shall\n be exempt from inspection and copying: “Records that relate to or affect the security of\n correctional institutions and detention facilities.” Id. § 7(1)(e). The parties’ contentions\n regarding section 7(1)(e) present a question of statutory interpretation, which we review\n de novo. Calloway v. Chicago Police Department, 2022 IL App (1st) 210090, ¶ 14.\n\n 3\n Glynn’s appeal does not involve any issue concerning audio footage.\n\n -6-\n\f¶ 27 When interpreting a statute, we must ascertain and give effect to the legislature’s intent.\n Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, ¶ 24. The best indication of that\n intent is the language employed in the statute, given its plain and ordinary meaning. Id. When\n the statute’s language is unambiguous, we may not depart from that language by reading into\n it exceptions, limitations, or conditions unexpressed by the legislature; likewise, we may not\n add provisions under the guise of interpretation. Id. Moreover, when the statute is\n unambiguous, we apply the statute without resort to other aids of statutory construction. Palm\n v. Holocker, 2018 IL 123152, ¶ 21.\n¶ 28 However, when statutory language “leaves uncertainty as to how it should be interpreted\n in a particular context, the court can consider the purpose behind the law and the evils the law\n was designed to remedy.” Phoenix Bond & Indemnity Co. v. Pappas, 194 Ill. 2d 99, 106 (2000).\n “A fundamental principle of statutory construction is to view all provisions of a statutory\n enactment as a whole. Accordingly, words and phrases should not be construed in isolation,\n but must be interpreted in light of other relevant provisions of the statute.” Southern Illinoisan\n v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A statute should not be\n construed in a way that would defeat its purpose “or yield an absurd or unjust result.” Phoenix\n Bond & Indemnity Co., 194 Ill. 2d at 107.\n¶ 29 DOC argues that it was entitled to summary judgment because it established that the\n requested security camera footage related to or affected Joliet’s security, thus exempting the\n footage from disclosure under FOIA. DOC adds that it did not need to show whether release\n of the video affected security as long as the videos related to security. Giving section 7(1)(e)\n its plain and ordinary meaning, DOC contends it needed to show simply that the footage\n revealed information concerning Joliet’s security. DOC argues this court should apply section\n 7(1)(e) as written, citing Chicago Sun-Times, 2021 IL App (1st) 192028, ¶ 44, for the\n proposition that when the General Assembly uses very broad language to define a FOIA\n exemption, this court applies the exemption as written.\n¶ 30 In Chicago Sun-Times, this court held that security camera footage of a subway platform\n was exempt under section 7(1)(v) of FOIA (5 ILCS 140/7(1)(v) (West 2020)) as\n “security measures *** designed to identify, prevent, or respond to potential attacks\n upon a community’s population or systems, facilities, or installations, the destruction\n *** of which would constitute a clear and present danger to the health or safety of the\n community, but only to the extent that disclosure could reasonably be expected to\n jeopardize the effectiveness of the measures, or the safety of the personnel who\n implement them or the public.”\n See Chicago Sun-Times, 2021 IL App (1st) 192028, ¶¶ 37, 43-44. DOC contends that, based\n on this court’s analysis in Chicago Sun-Times, the language of section 7(1)(e) is at least as\n expansive as exemption 7(1)(v).\n¶ 31 Glynn responds that DOC’s interpretation of “relating to” would give section 7(1)(e) an\n expansive interpretation and render a broad category of public documents immune to public\n scrutiny, contrary to the intent of FOIA. Glynn argues that section 7(1)(e) of FOIA must be\n construed narrowly to further the statutory purpose to open governmental records to the light\n of public scrutiny. According to Glynn, this narrow construction should require DOC to prove\n that disclosure would actually affect security. Citing Kalven v. City of Chicago, 2014 IL App\n (1st) 121846, ¶ 19, overruled on other grounds by Perry v. Department of Financial &\n Professional Regulation, 2018 IL 122349, ¶¶ 19-22, Glynn argues that the court rejected the\n\n -7-\n\f defendants’ proposed broad interpretation of the phrase “related to” in the context of the FOIA\n exemption in section 7(1)(n) (5 ILCS 140/7(1)(n) (West 2012)), which exempts “[r]ecords\n relating to a public body’s adjudication of employee grievances or disciplinary cases; [but\n does] not extend to the final outcome of cases in which discipline is imposed.” Kalven held\n that this exemption did not apply to complaint register files (CRs) of completed investigations\n into allegations of police misconduct. In so holding, Kalven rejected the defendants’ expansive\n reading of “related to,” concluding, inter alia, that it was “at odds” with FOIA’s purpose “to\n open governmental records to the light of public scrutiny.” (Internal quotation marks omitted.)\n Kalven, 2014 IL App (1st) 121846, ¶ 19. Kalven concluded that the “phrase ‘related to’ must\n be read narrowly, and in the context of FOIA, CRs are not ‘related to’ disciplinary\n adjudications in a way that might exempt them from disclosure.” Id. ¶ 22.\n¶ 32 Glynn also argues that if the legislature had intended to exempt all DOC records related to\n security, then the “carve outs” of FOIA section 7(1)(e-6) and (e-8) (5 ILCS 140/7(1)(e-6), (e-\n 8) (West 2020)) would be superfluous because the records they exempt have some tangential\n connection to security. Specifically, sections 7(1)(e-6) and 7(1)(e-8) exempt, respectively,\n records requested by inmates (1) “if those materials include records from staff members’\n personnel files, staff rosters, or other staffing assignment information,” and (2) “the disclosure\n of which would result in the risk of harm to any person or the risk of an escape from a jail or\n correctional institution or facility.” Id. Glynn argues that DOC must show that disclosure\n actually affects security.\n¶ 33 We reject Glynn’s argument that DOC must show that disclosure actually affects security.\n Not only would such a standard fail to account for the lack of certainty in attempting to predict\n harm (see Chicago Sun-Times, 2021 IL App (1st) 192028, ¶¶ 39-40), Glynn’s interpretation\n overlooks the disjunctive conjunction “or” between the terms “relate” and “affect.” There is\n considerable overlap between the section 7(1)(e)’s requirement that the record must either\n relate to or affect the prison’s security because a record cannot affect security unless it is related\n to security. Black’s Law Dictionary defines “relate” to mean: “[t]o stand in some relation; to\n have bearing or concern; to pertain; refer; to bring into association with or connection with.”\n Black’s Law Dictionary 1288 (6th ed. 1990). The potential applicability of the term “relate” is\n extremely broad. Because DOC is responsible for maintaining custody over committed persons\n (see 730 ILCS 5/3-2-2 (West 2020)), most records that DOC possesses arguably relate to\n security in some way.\n¶ 34 Accordingly, for purposes of section 7(1)(e), the meaning of “relate” is ambiguous. Thus,\n section 7(1)(e) must be construed in the broader context of FOIA as a whole and the purposes\n of FOIA “to provide the public with easy access to government information,” that FOIA is to\n be afforded a liberal construction, and that a public body must disclose a requested record\n “unless one of the narrow statutory exemptions” applies. Southern Illinoisan, 218 Ill. 2d. at\n 415-17. Construing section 7(1)(e) in light of the purpose of FOIA and its other provisions, it\n better comports with FOIA to conclude that section 7(1)(e) applies to records that could\n jeopardize the security of a correctional institution or detention facility if disclosed, rather than\n any records merely pertaining to security in any manner whatsoever. We conclude that section\n 7(1)(e) applies only when a public body demonstrates that disclosure of a requested record\n could pose a potential security risk to a correctional facility.\n\n\n\n\n -8-\n\f¶ 35 B. Sufficiency of DOC’s Affidavit\n¶ 36 Glynn argues that DOC failed to prove by clear and convincing evidence that the footage\n was exempt under FOIA’s section 7(1)(e) because DOC’s affidavit was generic, conclusory,\n and failed to address the specific footage in this case. Glynn also argues that the circuit court\n erred by relying on the affidavit without conducting an in camera review.\n¶ 37 When a public body invokes one of the exemptions in section 7 of FOIA as grounds for\n refusing disclosure, it must give written notice specifying the particular exemption claimed to\n authorize the denial. Illinois Education Ass’n v. Illinois State Board of Education, 204 Ill. 2d\n 456, 464 (2003). Thereafter, if the party seeking disclosure of information under FOIA\n challenges the public body’s denial in circuit court, the public body has the burden of proving\n that the records in question fall within the exemption it has claimed. Id.; 5 ILCS 140/11 (West\n 2020). “To meet this burden and to assist the court in making its determination, the agency\n must provide a detailed justification for its claim of exemption, addressing the requested\n documents specifically and in a manner allowing for adequate adversary testing.” (Emphasis\n in original.) Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530, 537 (1989).\n¶ 38 Section 11(f) of FOIA states that the court “shall conduct such in camera examination of\n the requested records as it finds appropriate to determine if such records or any part thereof\n may be withheld under any provision of this Act.” 5 ILCS 140/11(f) (West 2020). However,\n the circuit court need not conduct an in camera review when the public body meets its burden\n to show that the statutory exemption applies by means of affidavits. Illinois Education Ass’n,\n 204 Ill. 2d at 469. Affidavits that are conclusory, merely recite statutory standards, or are too\n vague or sweeping are not sufficient to establish the public body’s burden of proof. Id.\n¶ 39 DOC argues that it met its burden of demonstrating by clear and convincing evidence that\n the requested footage would have revealed information concerning Joliet’s security and\n thereby jeopardize the security of its staff and inmates through Diers’s affidavit, which\n described the footage and the potential security risk posed by its disclosure.\n¶ 40 Glynn, however, argues that DOC failed to provide a detailed justification for its claimed\n exemption and some objective indicia that the exemption applied under the circumstances.\n Specifically, Glynn argues that DOC failed to (1) establish that any blind spots even existed in\n the dayroom and dorm 7 by describing the layout of those rooms and stating whether the\n cameras were hidden or whether one camera captured the blind spots of another camera,\n (2) prove that a viewer of the footage could determine the location of any blind spots,\n (3) address whether blind spots can be ascertained from the ground by viewing the camera set-\n up in person, and (4) prove that knowing the location of any blind spots affected security\n because Diers’s affidavit contained only a generic recitation of potential harms that could occur\n if blind spots were revealed but did not address the security concerns of Joliet, the dayroom,\n or dorm 7 specifically.\n¶ 41 Diers’s affidavit stated that the videos show the layout of the dayroom and dorm 7 and the\n structure of these areas. The videos also show various aspects of staffing at the facility, namely\n the placement and movement of department staff members, including prison guards. The\n videos also disclose the range of the security cameras, which exposes potential areas that the\n cameras may not cover (blind spots). DOC stated that release of the videos would negatively\n impact the security of Joliet because the footage exposes significant aspects of the facility’s\n security staffing placements, staff movements, inmate movements, and blind spots that viewers\n\n\n -9-\n\f of the footage could use to evade detection of actions that could endanger other inmates and/or\n staff.\n¶ 42 In determining whether Diers’s affidavit provides a sufficient detailed justification for a\n section 7(1)(e) exemption and addresses the requested documents specifically and in a manner\n allowing for adequate adversary testing, we consider other cases that held the supporting\n affidavit was not sufficient to sustain the burden of proof.\n¶ 43 In Illinois Education Ass’n, the issue presented was whether material the Illinois State\n Board of Education (Board) submitted to the Illinois Attorney General when requesting the\n Attorney General’s opinion on a certain topic was protected from disclosure under FOIA’s\n attorney-client exemption even though the Board knew that the requested opinion, which might\n quote the submitted material, would be made public. The Board submitted affidavits generally\n averring that the Board’s opinion requests were made with the expectation that they would be\n maintained in confidence and that the Attorney General’s office recognizes that such\n communications may be subject to the attorney-client privilege. Id. at 461-62. The supreme\n court held that the affidavits submitted by the Board in support of the exemption were merely\n conclusory and inadequate to sustain the Board’s burden of proof. Id. at 469. The court stated\n that a public body attempting to meet its burden to show that the attorney-client exemption of\n FOIA’s section 7(1)(n) was applicable\n “may not simply treat the words ‘attorney-client privilege’ or ‘legal advice’ as some\n talisman, the mere utterance of which magically casts a spell of secrecy over the\n documents at issue. Rather, the public body can meet its burden only by providing some\n objective indicia that the exemption is applicable under the circumstances.” (Emphasis\n in original.) Id. at 470.\n Furthermore, the court stated that “in camera review by the circuit court is the most effective\n way for the public body to objectively demonstrate that the exemption claimed does, in fact,\n apply” because it “affords the benefits of an impartial arbiter without the risks accompanying\n public disclosure of the documents.” Id. at 471 (citing Baudin, 192 Ill. App. 3d at 543\n (McLaren, J., concurring) (“The trial court should be hesitant in determining a privilege exits\n based solely on the affidavits submitted by the defendant, for without an in camera review\n there is no external means to verify the truthfulness of the affidavits ***.”)).\n¶ 44 In Day v. City of Chicago, 388 Ill. App. 3d 70, 72 (2009), an inmate convicted of murder\n in 1994 sought in 2007 under FOIA the city police department’s file of the murder\n investigation. The city denied the request based on the FOIA exemptions for on-going criminal\n investigations. Id. The court held that the city failed to provide a detailed justification for its\n claimed exemption because the police officers’ affidavits contained sweeping generalities,\n were conclusory, and did not adequately explain why the 17-year-old murder investigation was\n considered ongoing or how disclosure of the documents would obstruct the remaining\n investigation. Id. at 76.\n¶ 45 In Evans v. Federal Bureau of Prisons, 951 F.3d 578, 581 (D.C. Cir. 2020), 4 a prisoner\n requested under federal FOIA surveillance footage of an incident where the prisoner was\n stabbed with a screwdriver in the inmate dining area. The defendant bureau denied the request\n\n 4\n The “General Assembly patterned FOIA after the federal FOIA,” and thus, “Illinois courts often\n look to federal case law construing the federal FOIA for guidance in construing FOIA.” In re\n Appointment of Special Prosecutor, 2019 IL 122949, ¶¶ 54-55.\n\n - 10 -\n\f based on the federal exemptions for the disclosure of records that could reasonably be expected\n to (1) constitute an unwarranted invasion of personal privacy and (2) disclose law enforcement\n techniques and procedures. To support this denial, the bureau submitted an affidavit that stated\n the footage contained the images of about 70 people and thus disclosure of the footage “may\n constitute an unwarranted invasion of privacy.” (Emphasis and internal quotation marks\n omitted.) Id. at 586. The bureau argued that it lacked the technological capability to segregate\n images potentially responsive to the prisoner’s request from the images of third parties on the\n video recordings. Id. at 582. The bureau also argued that the footage would show the location\n of video cameras and, thus, “prisoners could modify[ ] their criminal behavior to prevent\n detection and circumvent the methods law enforcement officers use to discover the existence\n of and investigate the conduct of prisoners.” (Internal quotation marks omitted.) Id. at 587-88.\n¶ 46 The Evans court ruled that the bureau’s affidavit lacked reasonable specificity, was\n conclusory, and recited statutory language without demonstrating its applicability to the\n information withheld. Id. at 586-87. The court stated that the bureau did not explain why it\n could not at least isolate some screen shots or blur out faces. Id. at 587. The court also noted\n that the affidavit failed to clarify whether the location of video cameras would be visible to\n inmates in the prison dining hall or “address the field of view of any or all of the cameras so\n as to reveal potential blind spots.” Id. at 588.\n¶ 47 Here, Diers’s affidavit is vague regarding the layout of the rooms in question, the scope of\n the area covered by each of the cameras, the location of the blind spots, the images’ clarity,\n and whether any of the cameras are hidden. DOC argues that if Diers’s affidavit were more\n detailed and specific, it might reveal information protected by the FOIA exemptions. We do\n not question DOC’s good faith on this subject. However, summary judgment on this issue\n requires DOC to show that there is no genuine dispute as to whether the placement of cameras\n is such that exposure of the video recording would in fact disclose blind spots and thereby\n jeopardize the security of Joliet. The problem of a more detailed affidavit revealing protected\n information can be avoided by submitting the material containing these details to the court for\n in camera review.\n¶ 48 Furthermore, if the circuit court had conducted an in camera review of the footage and\n thereby confirmed Diers’s averments regarding the existence of the blind spots, then DOC\n might have met its burden under section 7(1)(e). However, an in camera review did not occur\n here. The present record is not sufficient to support summary judgment, so an in camera\n examination by the court is necessary to determine whether DOC met its burden of proof. In\n summary, DOC’s declaration is too unspecific on its own to establish that withholding the\n footage under the exemption is justified. Accordingly, we reverse the summary judgment\n granted in favor of DOC and remand the matter, directing the circuit court to conduct an\n in camera review of the footage.\n\n¶ 49 C. Blind Spots\n¶ 50 Glynn argues the circuit court erred by ruling that the existence of blind spots alone in\n prison surveillance footage was sufficient to exempt it from disclosure under section 7(1)(e).\n Glynn argues that “if the mere existence of blind spots for a single camera is sufficient to\n withhold surveillance footage, the Circuit Court’s interpretation of section 7(1)(e) would, in\n effect, create a per se exemption of all prison surveillance footage, including footage that\n shows prison guards abusing prisoners.” Glynn argues that any incident recorded would\n\n - 11 -\n\f tangentially relate to security and be exempt, thereby rendering a broad category of public\n documents immune from public scrutiny even though the legislature did not specifically\n exempt these records outright. Glynn contends that this result contradicts our courts’\n requirement that FOIA exceptions to disclosure are to be read narrowly.\n¶ 51 Glynn misconstrues the circuit court’s ruling. The court clarified that its ruling was made\n on a case-by-case basis. We do not doubt that many prison surveillance camera footage will\n be found to be exempt under this court’s interpretation of section 7(1)(e). Nevertheless, the\n circuit court’s decision is dependent on several variables, including the type of room filmed;\n the contents of the footage; whether the recording is of most, but not all, of the room; and\n whether the agency demonstrates that disclosure of the footage would pose a potential security\n risk to a correctional institution or detention facility.\n¶ 52 Finally, Glynn cites DOC’s disclosure of footage in discovery and the Illinois State Police’s\n disclosure of footage in response to a FOIA request to support Glynn’s argument that the\n potential security risk posed by exposing blind spots is “undermined by the fact that footage\n from another DOC facility has been publicly released clearly depicting blind spots.” Glynn,\n however, has forfeited this argument by failing to cite any relevant authority to support the\n notions that disclosure of security footage to an opposing party in litigation and disclosure by\n the state police of different footage from a different correctional institution precludes DOC\n from invoking section 7(1)(e) in this case. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020)\n (opening brief must include “citation of the authorities *** relied on”); 1400 Museum Park\n Condominium Ass’n v. Kenny Construction Co., 2021 IL App (1st) 192167, ¶ 51 (party\n “forfeited *** argument for purposes of appeal by failing to cite any supporting authority”).\n\n¶ 53 III. CONCLUSION\n¶ 54 For the foregoing reasons, we reverse the circuit court’s judgment in favor of DOC and\n against Glynn on the parties’ cross-motions for summary judgment and remand this matter,\n directing the circuit court to conduct an in camera review.\n\n¶ 55 Reversed and remanded.\n\n\n\n\n - 12 -\n\f"} {"dedup_key":"2023 IL App (1st) 220059-U","dedup_key_type":"neutral_citation","neutral_citation":"2023 IL App (1st) 220059-U","case_name":"Darron Brewer v. City of Chicago, et al.","court_level":"Appellate","appellate_district":"1st","year":2023,"county":"Cook","appellate_docket":"1-22-0059","circuit_docket":"19 CH 14931","published":0,"authoring_justice":"Martin","statute":["FOIA"],"exemptions_cited":[],"public_body":"City of Chicago / Chicago Police Department","requesting_party":"Darron Brewer","disposition":"reversed_in_part","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court reversed the circuit court's grant of summary judgment, finding the record insufficient to establish by clear and convincing evidence that a FOIA exemption justified the City's redactions. The case was remanded for further proceedings to resolve genuine issues of material fact regarding the applicability of exemptions to the requested records.","best_text_source":"Court Opinions - FOIA/Brewer v. City of Chicago, 2023 IL App (1st) 220059-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:46.449449","site_category":"FOIA Response Process","date_decided":"2023-11-02","site_url":"/cases/2023%20IL%20App%20(1st)%20220059-U/","text_url":"/case-text/2023%20IL%20App%20(1st)%20220059-U.txt","full_text":" 2023 IL App (1st) 220059-U\n\n No. 1-22-0059\n\n Filed November 2, 2023\n\n Modified upon denial of rehearing April 18, 20241\n\n Fourth Division\n\n NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the\n limited circumstances allowed under Rule 23(e)(1).\n\n IN THE\n APPELLATE COURT OF ILLINOIS\n FIRST DISTRICT\n\n\n\n DARRON BREWER, ) Appeal from the\n ) Circuit Court of\n Plaintiff-Appellant, ) Cook County.\n )\n v. ) 19 CH 14931\n )\n THE CITY OF CHICAGO, )\n THE CHICAGO POLICE DEPARTMENT, )\n EDDIE JOHNSON, Former Superintendent of )\n Police of the City of Chicago, and ANDREW )\n MARLAN, Freedom of Information Act Officer, ) Honorable\n ) Raymond W. Mitchell\n Defendants-Appellees. ) Judge, Presiding.\n\n\n JUSTICE MARTIN delivered the judgment of the court.\n Presiding Justice Rochford and Justice Ocasio concurred in the judgment.\n\n ORDER\n\n¶1 Held: Summary judgment reversed. The trial record is insufficient to establish by clear\n and convincing evidence that a FOIA exemption permitted redactions of requested\n records.\n\n\n 1\n Pursuant to Illinois Supreme Court Rule 367(d) (eff. Nov. 1, 2017), the City filed an answer to the\n appellant’s petition for rehearing upon our request.\n\f No. 1-22-0059\n\n\n¶2 Darron Brewer appeals the circuit court’s grant of summary judgment to the City of\n\n Chicago (City) in Brewer’s action brought pursuant to the Freedom of Information Act (FOIA) (5\n\n ILCS 140/1 et seq. (West 2018)).2\n\n¶3 Brewer is currently serving a 75-year prison sentence for his convictions for first degree\n\n murder and aggravated kidnapping. See People v. Brewer, 2016 IL App (1st) 133204-U. In\n\n November 2016, Brewer requested the Chicago Police Department (CPD) provide him with the\n\n arrest report, booking report, and property receipt related to the investigation that resulted in his\n\n conviction. In response, CPD provided Brewer with copies of the contents of a homicide\n\n investigation file related to Brewer’s case, with various redactions. CPD’s response included a\n\n letter stating that the redacted material was exempt from disclosure under various FOIA provisions,\n\n including exemptions for private information (5 ILCS 140/7(1)(b) (West 2018)), personal\n\n information (id. § 7(1)(c)), and records that would unavoidably disclose the identity of a\n\n confidential source (id. § 7(1)(d)(iv)). CPD’s response did not indicate which exemption applied\n\n to each specific redaction.\n\n¶4 Nearly two years later, on September 27, 2018, Brewer submitted another request seeking\n\n “all the statements and records attributed to Benita Wallace without redactions.” Wallace was a\n\n witness who testified in Brewer’s criminal trial. Along with his request, Brewer attached a signed\n\n and notarized “Statement of Disclosure” from Wallace. In her statement, Wallace asserts that she\n\n was the primary user of a specified telephone number in 2009 and that she permits CPD to give\n\n Brewer all records in its file that contain her name, phone number, and personal information,\n\n without redactions.\n\n\n\n\n In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this\n 2\n\n appeal has been resolved without oral argument upon the entry of a separate written order.\n -2-\n\f No. 1-22-0059\n\n\n¶5 On January 15, 2019, CPD responded by letter stating that it determined Brewer’s\n\n September 2018 request was a repeated request for records it already provided in response to his\n\n 2016 request. The letter further stated that CPD considered Brewer’s latest request as unduly\n\n burdensome and cited a FOIA provision that allows for the denial of repeated requests from the\n\n same person for the same records, which were either previously provided or properly denied, as\n\n unduly burdensome. See 5 ILCS 140/3(g) (West 2018).\n\n¶6 Brewer replied, stating he was narrowing his request to Wallace’s unredacted phone records\n\n and reiterated that Wallace had given her written consent. He enclosed a redacted copy of the\n\n records he was seeking—six pages that T-Mobile sent to CPD in response to a subpoena in 2009.\n\n The response indicates that the subpoena sought “Subscriber information w/Call Detail Records\n\n for the T-Mobile subscriber associated with MSISDN.” 3 The material following “MSISDN” is\n\n redacted. Throughout the six pages, redactions follow labels such as Billing Account Number,\n\n Billing Account Name, Date of Birth, Address, and Mobile Number. The final three pages show\n\n what appears to be data documenting communications involving the subscriber number for the\n\n dates of October 24, 2009, through October 27, 2009. The information listed in columns labelled\n\n MSISDN and Phone Number is redacted.\n\n¶7 CPD responded that the records were properly redacted and denied any additional\n\n disclosure.\n\n¶8 Brewer filed a complaint in the circuit court naming the City, CPD, former Superintendent\n\n of Police Eddie Johnson, and FOIA Officer Andrew Marlan as defendants. 4 The complaint asserted\n\n that Wallace’s written consent to disclosure entitled him to unredacted copies of the records he\n\n\n 3\n The City’s brief states that MSISDN is the subscriber’s cellular telephone number.\n 4\n CPD is a department of the City of Chicago. Johnson and Marlan were named solely in their\n capacities as employees of the City of Chicago. The defendants were appropriately treated as a single party,\n the City, in these proceedings.\n -3-\n\f No. 1-22-0059\n\n\n requested and that CPD willfully and intentionally violated FOIA by withholding them. The\n\n complaint asked the court to order CPD to produce the unredacted records and impose a civil\n\n penalty. The City filed an answer admitting that it had corresponded with Brewer as he alleged.\n\n However, the City asserted as an affirmative defense that the information at issue is exempt from\n\n production under FOIA. The City did not indicate which specific exemptions it believed applied.\n\n¶9 Brewer filed a motion to strike the City’s answer and followed with a motion to amend his\n\n complaint to add a copy of a letter he sent to CPD in December 2018 as an exhibit. The record\n\n does not indicate whether a ruling was made on either motion. Brewer later filed a motion for\n\n judgment on the pleadings. The record shows no ruling on this motion.\n\n¶ 10 Later, the City moved for summary judgment, asserting that Brewer’s claim is moot since\n\n it provided Brewer with all records responsive to his requests and all redactions were proper. The\n\n City stated that it redacted private and personal information, and information identifying witnesses\n\n who provided information to the police, pursuant to FOIA’s exemptions for each. However, the\n\n City did not specify which exemption or exemptions applied to the redacted phone records at issue.\n\n The City attached an affidavit from Andrew Marlan, an employee who handled Brewer’s 2018\n\n request. Marlan attested that the homicide investigation file indicated Wallace was a juvenile at\n\n the time of the events under investigation. Since he had never received a request from an inmate\n\n seeking records associated with a juvenile witness before, Marlan consulted his CPD supervisor\n\n and the City Law Department. Marlan was directed to deny Brewer’s request because “they felt\n\n uneasy about the validity of [Wallace’s] signature.” After Brewer narrowed his request to\n\n Wallace’s unredacted phone records, Marlan was directed by CPD’s counsel to deny the request\n\n because counsel “did not trust the signature.” Marlan added that the phone account at issue was\n\n not in Wallace’s name, but that of a parent.\n\n\n\n -4-\n\f No. 1-22-0059\n\n\n¶ 11 Brewer filed a response opposing the City’s motion, reiterating his position that Wallace’s\n\n written consent entitled him to the phone records.\n\n¶ 12 The circuit court granted the City’s motion, entering a written order prepared by the City’s\n\n counsel. The order contained a finding that “CPD complied with its FOIA obligations because\n\n [Brewer] was provided with documents responsive to his FOIA request subject to redactions\n\n permitted under the FOIA statute.” The order did not specify which FOIA exemption permitted\n\n redactions of the phone records. Brewer filed a timely notice of appeal.\n\n¶ 13 On appeal, Brewer first argues that his 2018 request cannot be deemed unduly burdensome\n\n since the City failed to comply with FOIA’s requirement to respond within five business days of\n\n receipt of his request or a proper extension for the time to respond. See 5 ILCS 140/3(d)-(f) (West\n\n 2018). Indeed, the statute bars a public body from treating a request as unduly burdensome if it\n\n fails to respond within five days or request a proper extension. Id. However, Brewer failed to assert\n\n this argument before the trial court. Arguments not raised in the trial court may not be raised for\n\n the first time on appeal. Seifert v. Sneckenberg Thompson & Brody, LLP, 2022 IL App (1st) 200966,\n\n ¶ 43. Though, even if the argument had been raised, it would not resolve the issue in this case or\n\n result in the relief Brewer seeks. The City’s untimeliness would only require it to produce the\n\n requested records: it would not prohibit the City from redacting material as permitted by FOIA.\n\n¶ 14 Accordingly, we address Brewer’s claim that the circuit court erred in granting the City’s\n\n motion for summary judgment. Summary judgment motions permit the trial court to determine\n\n whether any genuine issue of material fact exists in the action, and if not, to provide an expedient\n\n means of resolution. Greenburg v. Orthosport, Inc., 282 Ill. App. 3d 830, 832 (1996). “ ‘Although\n\n summary judgment is to be encouraged as an expeditious manner of disposing of a lawsuit, it is a\n\n drastic measure and should be allowed only where the right of the moving party is clear and free\n\n\n\n -5-\n\f No. 1-22-0059\n\n\n from doubt.’ ” Scollard v. Williams, 2023 IL App (1st) 220464, ¶ 17 (quoting Wells Fargo Bank,\n\n N.A. v. Norris, 2017 IL App (3d) 150764, ¶ 19). We review the trial court’s grant of summary\n\n judgment de novo. Id.\n\n¶ 15 To begin, we observe that Brewer’s 2018 request for an unredacted copy of phone records\n\n previously provided to him in redacted form can only be denied as a repeated request if the\n\n redactions were proper. FOIA contemplates that repeated requests shall be deemed unduly\n\n burdensome when seeking “the same records that are unchanged or identical to records previously\n\n provided or properly denied.” (Emphasis added.) 5 ILCS 140/3(g) (West 2018). An unredacted\n\n version of a document is not identical to a redacted version. But, if the redactions were proper, a\n\n repeated request would yield an identically redacted response. Thus, our analysis turns to whether\n\n the redactions were proper.\n\n¶ 16 FOIA provides that “[w]hen a request is made to inspect or copy a public record that\n\n contains information that is exempt from disclosure ***, but also contains information that is not\n\n exempt from disclosure, the public body may elect to redact the information that is exempt.”\n\n 5 ILCS 140/7(1) (West 2018). “Private information” is among the information exempted from\n\n disclosure. Id. § 140/7(1)(b). FOIA defines “private information” to mean “unique identifiers,\n\n including a person’s social security number, driver’s license number, employee identification\n\n number, biometric identifiers, personal financial information, passwords or other access codes,\n\n medical records, home or personal telephone numbers, and personal email addresses.” 5 ILCS\n\n 140/2(c-5) (West 2018). FOIA also exempts “[p]ersonal information contained within public\n\n records, the disclosure of which would constitute a clearly unwarranted invasion of personal\n\n privacy ***.” 5 ILCS 140/7(1)(c) (West 2018). The statute further explains that “ ‘[u]nwarranted\n\n invasion of personal privacy’ ” means the disclosure of information that is highly personal or\n\n\n\n -6-\n\f No. 1-22-0059\n\n\n objectionable to a reasonable person and in which the subject’s right to privacy outweighs any\n\n legitimate public interest in obtaining the information.” Id. Personal information may be disclosed,\n\n however, if “consented to in writing by the individual subjects of the information.” Id.\n\n¶ 17 When a public body asserts that a record is exempt from disclosure, it bears the burden of\n\n proving by clear and convincing evidence that the record is exempt. Mancini Law Group, P.C. v.\n\n Schaumburg Police Department, 2021 IL 126675, ¶ 16 (citing 5 ILCS 140/1 (West 2016)). In the\n\n City’s motion for summary judgment, it asserted that the redactions in its prior response to\n\n Brewer’s 2016 request were made pursuant to FOIA exemptions for private information, personal\n\n information, and information identifying witnesses who provided information to the police. These\n\n assertions, however, were broad and conclusory, speaking in terms of the entirety of the\n\n investigation file it produced. The supporting affidavit from Andrew Marlan does not indicate with\n\n specificity how any FOIA exemption applied either. Marlan merely indicated that Wallace was a\n\n juvenile witness in the homicide investigation, the account was in her parent’s name, and the City\n\n doubted the legitimacy of the signature. Thus, the City made no showing that any exemption\n\n applies to the redacted information on the six pages of T-Mobile phone records.\n\n¶ 18 The City’s appellate brief states “[t]he records Brewer seeks consist entirely of ‘home or\n\n personal telephone numbers,’ namely Wallace’s phone number and all the phone numbers she\n\n dialed during the relevant period.” The record before us, however, does not establish this. The City\n\n submitted no evidence and the court made no findings that would support such a conclusion.\n\n¶ 19 Rather, the record before us presents genuine issues of material fact regarding the redacted\n\n information that prevents a finding that the City is entitled to judgment as a matter of law. Without\n\n a showing by clear and convincing evidence, which may include an in camera inspection of the\n\n unredacted records, we cannot conclude if a FOIA exemption applies to permit the redaction or\n\n\n\n -7-\n\f No. 1-22-0059\n\n\n whether an unredacted copy should be provided to Brewer based on Wallace’s consent to\n\n disclosure of her personal information.\n\n¶ 20 For these reasons, we find a genuine issue of material fact exists and the City’s right to\n\n judgment is not clear and free from doubt. Accordingly, we reverse the judgment of the circuit\n\n court and remand this matter for further proceedings consistent with this order.\n\n¶ 21 Reversed and remanded.\n\n\n\n\n -8-\n\f"} {"dedup_key":"2023 IL App (1st) 220265-U","dedup_key_type":"neutral_citation","neutral_citation":"2023 IL App (1st) 220265-U","case_name":"Michael Lambert v. City of Chicago, Chicago Fire Department, and Chicago Police Department","court_level":"Appellate","appellate_district":"1st","year":2023,"county":"Cook","appellate_docket":"1-22-0265","circuit_docket":"2021 CH 2889","published":0,"authoring_justice":"Fitzgerald Smith","statute":["FOIA"],"exemptions_cited":[],"public_body":"City of Chicago, Chicago Fire Department, Chicago Police Department","requesting_party":"Michael Lambert","disposition":"dismissed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court dismissed the appeal for lack of jurisdiction. The court held that the plaintiff failed to timely file his notice of appeal following the trial court's ruling on his FOIA-based request for injunctive relief.","best_text_source":"Court Opinions - FOIA/Lambert v. City of Chicago, 2023 IL App (1st) 220265-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:46.598511","site_category":"FOIA Response Process","date_decided":"2023-05-16","site_url":"/cases/2023%20IL%20App%20(1st)%20220265-U/","text_url":"/case-text/2023%20IL%20App%20(1st)%20220265-U.txt","full_text":" 2023 IL App (1st) 220265-U\n\n\n SECOND DIVISION\n May 16, 2023\n\n\n\n No. 1-22-0265\n\nNOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the\nlimited circumstances allowed under Rule 23(e)(1).\n\n\n IN THE\n APPELLATE COURT OF ILLINOIS\n FIRST JUDICIAL DISTRICT\n\n\n MICHAEL LAMBERT, )\n ) Appeal from the\n Plaintiff-Appellee, ) Circuit Court of\n ) Cook County,\n v. ) Chancery Division.\n )\n The CITY OF CHICAGO, the CHICAGO FIRE ) No. 2021 CH 2889\n DEPARTMENT, and the CHICAGO POLICE )\n DEPARTMENT, ) Honorable\n ) Moshe Jacobius,\n Defendants-Appellants. ) Judge Presiding.\n\n\n PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court.\n Justices Howse and Cobbs concur in the judgement.\n\n\n ORDER\n\n¶1 Held: The appeal is dismissed for lack of jurisdiction.\n\n¶2 This appeal stems from a cause of action filed by the plaintiff, Michael Lambert, against\n\nthe defendants, the City of Chicago (the City), the Chicago Fire Department (CFD) and the\n\nChicago Police Department (CPD), seeking injunctive relief pursuant to the Freedom of\n\fNo. 1-22-0265\n\n\nInformation Act (FOIA) (5 ILCS 140/1 et seq. (West 2020)). The plaintiff submitted two separate\n\nFOIA requests for records to the CPD and the CFD, both of which were related to an incident in\n\nwhich a member of the CFD struck and killed his wife with his vehicle. The CPD provided the\n\nplaintiff with some documents but denied that portion of his request that sought access to video\n\nand audio recordings. The CFD, on the other hand, denied the entirety of the plaintiff’s request.\n\nThe plaintiff filed the instant lawsuit seeking access to all the records he requested. After it\n\nreviewed the materials in camera, the circuit court determined that they were exempt from\n\ndisclosure under the Act (5 ILCS 140/7(1)(a), (c), 7.5(h) (West 2020)) and entered judgment in\n\nfavor of the defendants. The plaintiff now appeals, contending that dismissal of his action was\n\nimproper because he was denied a chance to conduct discovery, and because the defendants’\n\nclaimed exemptions were not specific or supported by an affidavit or any statement from\n\nindividuals in the City, the CPD or the CFD. The plaintiff further argues that the statutory\n\nexemption relied on by the circuit court violates the Illinois Constitution’s prohibition against\n\nspecial legislation. Ill. Const. 1970, Art. IV, § 13. For the following reasons, we find that we are\n\nwithout jurisdiction to consider this appeal.\n\n¶3 II. BACKGOUND\n\n¶4 The record before us reveals the following relevant and undisputed facts and procedural\n\nhistory. The incident that precipitated this litigation occurred on September 6, 2020, when CFD\n\nmember, Angelo Toskolas, struck and killed his wife Mary Jo Tsokolas, with a vehicle, in front of\n\ntheir residence located at 3358 114th Street, Chicago. The CPD and the CFD conducted separate\n\ninvestigations into the incident. Those investigations led to the creation of records, including\n\nreports, witness statements, photographs, and video and audio recordings. Over the course of\n\nseveral months, from October 2020 to March 2021, the plaintiff, who is Mary Joe’s uncle,\n\n\n\n 2\n\fNo. 1-22-0265\n\n\nsubmitted FOIA requests to the CPD and the CFD seeking records and materials related to the\n\nincident.\n\n¶5 On October 16, 2020, the CFD denied the plaintiff’s request, indicating that the records\n\ncould not be disclosed because the investigation was still pending. For the next six months, the\n\nCFD repeatedly denied the plaintiff’s resubmissions, using the same rationale.\n\n¶6 On November 5, 2020, the CPD provided the plaintiff with 169 documents related to the\n\nincident. After the plaintiff complained that the documents failed to disclose any video or audio\n\nrecordings obtained by CPD members during their investigation of the incident, on June 8, 2021,\n\nthe CPD sent the plaintiff additional materials, which included photographs but no video\n\nrecordings.\n\n¶7 On June 14, 2021, the plaintiff filed the instant lawsuit alleging violations of FOIA and\n\nseeking compelled disclosure of the records being improperly withheld by the defendants.\n\n¶8 On July 7, 2021, the defendants filed their answer and affirmative defenses, denying all\n\nwrongdoing regarding the plaintiff’s FOIA requests. While the defendants did not deny the partial\n\ndisclosure of records by the CPD and the full denial of documents by the CFD, they asserted that\n\nthe requests were properly denied because they were “unduly burdensome” and because the\n\ndocuments were exempt from disclosure under the Act. The defendants did not cite to any specific\n\nexemptions under the Act, but instead generally argued that they did not need to be disclosed\n\n“pursuant to one or more exemptions set forth in Section[s] 7 and 7.5 of FOIA.” See 5 ILCS 140/7,\n\n7.5 (West 2020).\n\n¶9 The plaintiff sought to conduct limited discovery. On July 29, 2021, he noticed a deposition\n\nof Robert Earnshaw from the CPD. On August 8, 2021, he issued eight interrogatories to the\n\ndefendants. In response, the defendants sent an email asserting that discovery was premature, and\n\n\n\n 3\n\fNo. 1-22-0265\n\n\n“inappropriate at this time” because the matter was not ripe.\n\n¶ 10 On August 6, 2021, the plaintiff filed a motion in the circuit court seeking to compel\n\ndiscovery. In addition, he filed a motion to require the defendants to prepare and produce an index\n\nof documents they were withholding.\n\n¶ 11 On August 9, 2021, the circuit court denied the motion to compel without prejudice. The\n\ncourt, however, ordered the defendants to file an index of documents that were being withheld\n\nfrom the plaintiff.\n\n¶ 12 On August 26, 2021, the defendants filed the index, listing 26 separate materials that they\n\nclaimed were exempt from disclosure under FOIA. For each category, the defendants asserted that\n\ndisclosure was exempt under section 7.5(h) of the Act because the records had been “turned over\n\nto [the] Office of [the] Inspector General to complete [an] investigation.” 51 ILCS 140/7.5(h)\n\n(West 2020). For the video footage requested from the CPD, the defendants cited two additional\n\nexemptions. They claimed that the video footage was: (1) exempt under the Illinois Body-Worn\n\nCamera Act (the Body Camera Act) (50 ILCS 706/10-20(b) (West 2020)); and (2) that its\n\ndisclosure would constitute a clearly unwarranted invasion of personal privacy for Angelo and\n\nMary Jo and was therefore exempt under section 7(1)(c) of FOIA. See 5 ILCS 140/7(1)(a), (c)\n\n(West 2020)\n\n¶ 13 Based on the information in the index, on September 7, 2021, the plaintiff filed a renewed\n\nmotion to conduct discovery. The defendants did not file a response and the circuit court did not\n\nrule on this motion. Instead, on September 13, 2021, the court ordered the defendants to produce\n\nphysical and electronic copies of all the materials listed in their index, including the CPD’s video\n\nfootage, for an in camera review, to evaluate the defendants’ claimed exemptions. The court\n\nsubsequently set the matter for a hearing “on asserted exemptions” on December 7, 2021.\n\n\n\n 4\n\fNo. 1-22-0265\n\n\n¶ 14 On that date, with counsel for both parties present, the circuit court announced that after its\n\nin camera review of the documents listed in the index, it believed that all the withheld materials\n\nwere exempt from disclosure under section 7.5(h) of the Act (5 ILCS 140/7.5(h) (West 2020))\n\nbecause they were handed over to the Inspector General’s Officer for an investigation. In addition,\n\nwith respect to the video footage sought from the CPD, the court held that these materials were\n\nexempt under the Body Camera Act. See 50 ILCS 706/10-20(b) (West 2020); 5 ILCS 140/7(1)(a)\n\n(West 2020). Throughout its findings the court specified several times that it was relying on an\n\naffidavit submitted by the defendants. The parties on appeal, however, agree that no such affidavit\n\nwas ever provided to the circuit court.\n\n¶ 15 After explaining its findings, the circuit court clarified that this was its “suggested ruling,”\n\nand that a draft judgment order had been prepared in advance of the hearing. The court then\n\npermitted the parties to make arguments. After hearing arguments by both parties, and upon\n\nplaintiff’s counsel’s request, the court agreed to add language to its order that would require the\n\ndefendants to inform the plaintiff when the Inspector General’s investigation was completed. The\n\ncourt then stated “So, with that we will issue the opinion. We’ll add that, just that one sentence\n\nabout defendants notifying the [p]laintiff.” The court then reiterated that the order was “already\n\ndone” but that it was best “before it’s sent to you[,] we add that one sentence.” The court then\n\nstated that this concludes “all the matter here.”\n\n¶ 16 On that same day, December 7, 2021, the circuit court entered a written judgment in favor\n\nof the defendants. A copy of the file-stamped order with the December 7, 2021, date was emailed\n\nto the plaintiff’s counsel on the following morning, December 8, 2021.\n\n¶ 17 The written order mirrors the court’s oral findings made at the December 7, 2021, hearing.\n\nSpecifically, the order states that the materials requested from the CFD are exempt from disclosure\n\n\n\n 5\n\fNo. 1-22-0265\n\n\nunder section 7.5(h) of FOIA (5 ILCS 140/7.5(h) (West 2020)) because they were submitted to the\n\nInspector General’s Office for an investigation. The order further includes language that states that\n\nthe defendants “shall notify” the plaintiff “when the investigation into this matter” by the Inspector\n\nGeneral is “complete.”\n\n¶ 18 In addition, the written order provides that based on the court’s in camera review, the body\n\ncamera footage sought from the CPD is exempt from disclosure for two additional reasons. First,\n\nthe Body Camera Act prohibits disclosure of the footage because the plaintiff did not request the\n\nfootage as a subject of the videos, and no other statutory predicates for disclosure are present (i.e.,\n\nthe filing of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death\n\nor bodily harm). See 5 ILCS 140/7(1)(a) (West 2020); 50 ILCS 706/10-20(b) (West 2020). In\n\naddition, neither the injuries nor the death of Mary Jo were recorded by the body-worn cameras,\n\nnor were they the result of any actions by the responding officers. Id. Second, according to the\n\nwritten order, the footage is exempt from disclosure under section 7(1)(c) of FOIA (5 ILCS\n\n140/7(1)(c) (West 2020)) because releasing it to the public would constitute a clearly unwarranted\n\ninvasion of privacy, as it depicts a scene of a highly personal nature to the Toskolas family.\n\n¶ 19 On January 7, 2022, 31 days after the circuit court entered its written order, the plaintiff\n\nfiled a motion to reconsider. At the hearing on that motion, on January 26, 2022, the defendants\n\nasserted that the court was without jurisdiction to consider the motion because it was filed one\n\nday late. The court stated that “it believed” the motion was filed “within the 30 days,” because it\n\nwas filed on January 7, and the written order was filed on December 7. The judge mentioned that\n\na glitch with the e-filing system delayed the scheduling of the motion and conceded that he was\n\n“not the best with math” but reiterated that based on his calculations if the order was filed on\n\n\n\n\n 6\n\fNo. 1-22-0265\n\n\nDecember 7 and the motion was filed on January 7, “it looked like it was within the 30 days.”\n\n¶ 20 The plaintiff’s counsel then stated that the parties received the judgment order on\n\nDecember 8, 2021. The court responded in the following manner:\n\n “Yes, I don’t know when it was stamped, because you know, the fact - I mean, we\n\n certainly thought it was within the 30 days *** [I]t’s a little bit of a challenge, because\n\n we’re doing things remotely. So[,] when you’re in a courtroom, they stamp it\n\n immediately, and you give the lawyer the order. Here, we’re sending it over the Internet.\n\n And sometimes it is stamped the day before, and then the attorney might receive it a day\n\n later. That could be problematic.”\n\nThe circuit court then denied the plaintiff’s motion to reconsider on the merits. The plaintiff now\n\nappeals.\n\n¶ 21 II. ANALYSIS\n\n¶ 22 On appeal, the plaintiff contends that dismissal of his action was improper because he\n\nwas denied a chance to conduct discovery and because, contrary to the circuit court’s findings,\n\nnone of the exemptions asserted by the defendants were supported by an affidavit from either the\n\nCPD or the CFD. The plaintiff further argues that section 7.5(h) of the Act (5 ILCS 140/7.5(h)\n\n(West 2020)), relied on by the circuit court to excuse the disclosure of the requested records,\n\nviolates the Illinois Constitution’s prohibition against special legislation. Ill. Const. 1970, Art.\n\nIV, § 13.\n\n¶ 23 The defendants concede that reversal is proper with respect to all the withheld records,\n\nexcept for the video footage from the body-worn cameras of the CPD officers who responded to\n\nthe incident. The defendants agree that no affidavit supporting the documents listed in the index\n\nwas ever provided to the circuit court and that therefore the court’s reliance on such an affidavit\n\n\n\n 7\n\fNo. 1-22-0265\n\n\nwas improper. The defendants nonetheless assert that the video footage was properly exempt\n\nfrom disclosure under the Body Worn Camera Act (50 ILCS 706/10-20(b) (West 2020)). More\n\nimportantly, however, the defendants argue that regardless of the merits of the plaintiff’s\n\ncontentions, we are without jurisdiction to consider this appeal.\n\n¶ 24 Unfortunately, after a review of the record below, we are compelled to agree with the\n\ndefendants and hold that the plaintiff’s notice of appeal was untimely field and that we therefore\n\nhave no jurisdiction to consider the merits of this appeal.\n\n¶ 25 At the outset, we note that before filing their brief in this appeal, the defendants moved to\n\ndismiss the appeal for want of jurisdiction, which a justice of this court denied. That denial,\n\nhowever, “is not final and must be modified by the panel hearing the appeal where jurisdiction is\n\nlacking.” In re Marriage of Teymour and Mostafa, 2017 IL App (1st) 161091, ¶ 10. Indeed,\n\n“[t]he panel that hears the appeal has an independent duty to determine whether it has\n\njurisdiction and dismiss the appeal if it does not.” In re Estate of Gagliardo, 391 Ill. App. 3d\n\n343, 349 (2009).\n\n¶ 26 Whether a court has jurisdiction to consider an appeal presents a legal question to be\n\ndetermined de novo without deference to the trial court’s reasoning. See In re Marriage of\n\nTeymour, 2017 IL App (1st) 161091, ¶ 10; Stasko v. City of Chicago, 2013 IL App (1st) 120265,\n\n¶ 27; Nationwide Advantage Mortgage Co. v. Ortiz, 2012 IL App (1st) 112755,¶ 20.\n\n¶ 27 Illinois Supreme Court Rule 303(a) requires a party appealing from a judgement in the\n\ncircuit court to file a notice of appeal within 30 days after entry of the final judgment, or if a\n\ntimely postjudgment motion against the judgment is filed, within 30 days from the entry of the\n\norder disposing of the last postjudgment motion. Ill. S. Ct. R. 303(a) (eff. July 1, 2017). To toll\n\nthe time for filing a notice of appeal, a postjudgment motion must be filed within 30 days of the\n\n\n\n 8\n\fNo. 1-22-0265\n\n\nfinal judgment. Id.; see also Lampe v. Pawlarczyk, 314 Ill. App. 3d 455, 469-70 (2000) (holding\n\nthat a postjudgment motion filed more than 30 days after the entry of the final judgment did not\n\ntoll the time for filing the notice of appeal).Where a posttrial motion directed against the\n\njudgment is not filed within 30 days, the clock starts running on the day of the entry of the final\n\norder. Id.; see also Won v. Grant Park 2, L.L.C., 2013 IL App (1st) 122523, ¶ 20.\n\n¶ 28 Compliance with the deadlines for appeals set forth in Supreme Court Rule 303 is\n\nmandatory and jurisdictional. Berg v. White, 357 Ill. App. 3d 496, 499 (2005);Won, 2013 IL App\n\n(1st) 122523, ¶ 20. “Strict compliance with supreme court rules governing the time limits for\n\nfiling a notice of appeal is required and neither a trial court nor an appellate court has the\n\nauthority to excuse compliance with the filing requirements mandated by the supreme court\n\nrules.” Won, 2013 IL App (1st) 122523, ¶ 20; Graves v. Cook County Republican Party, 2020 IL\n\nApp (1st) 181516, ¶ 30. When an appeal is untimely, this court has no discretion to take action\n\nother than to dismiss the appeal. Won, 2013 IL App (1st) 122523, ¶ 20.\n\n¶ 29 In the present case, the 30-day deadline for the plaintiff to file either a postjudgment\n\nmotion or a notice of appeal began to run on December 7, 2021, when the judgment order was\n\nfile-stamped as entered. The 30th day from the final judgment was January 6, 2022. The\n\nplaintiff, however, filed his postjudgment motion on January 7, 2022, 31 days after the entry of\n\nthe final judgment. His motion therefore did not toll the 30-day deadline to file his notice of\n\nappeal. Accordingly, the plaintiff’s notice of appeal, filed on February 23, 2022, was untimely,\n\nand we have no option but to dismiss his appeal. Won, 2013 IL App (1st) 122523, ¶ 20.\n\n¶ 30 The plaintiff concedes that he filed his postjudgment motion on January 7, 2022, 31 days\n\nafter the circuit court’s written order was file-stamped. He nonetheless asserts that this court\n\nshould ignore that file-stamp, and instead deem December 8, 2021, the date of the entry of the\n\n\n\n 9\n\fNo. 1-22-0265\n\n\nfinal judgment, as this was the day his counsel actually received an email with the written order.\n\nThe plaintiff points out that during the hearing on December 7, 2021, the trial judge made\n\nvarious comments indicating that “several aspects of the case were left up in the air,” and that his\n\n“standard operating procedure” was to issue an opinion “by sending it over the Interent” at a later\n\ndate. He therefore contends that he reasonably relied on the judge’s statements and believed that\n\nthe 30-day deadline to file his postjudgment motion was tolled by one day. In support, the\n\nplaintiff cites to this appellate court’s decision in Comdisco, Inc. v. Dun & Bradstreet Corp, 306\n\nIll. App. 3d 197, 202 (1999), which held that the trial court’s failure to follow its “standard\n\noperating procedure” in mailing its final judgment to the parties warranted an equitable tolling of\n\nthe time for filing an appeal. For the following reasons, we disagree and find that case\n\ninapposite.\n\n¶ 31 At the outset we disagree with the plaintiff’s characterization of what transpired at the\n\nDecember 7, hearing. Contrary to the plaintiff’s position, even though the circuit court initially\n\ndescribed its findings as its “suggested” ruling, it subsequently allowed the parties to make\n\narguments. After the parties discussed the possibility that the defendants could notify the plaintiff\n\nwhen the Inspector General’s Office completed its investigation, the court indicated that it could\n\nadd that language to its opinion. The court then explicitly stated “[s]o, with that we’ll issue the\n\nopinion. We’ll add that, just that one sentence about defendants notifying the [p]laintiff.” The\n\ncourt then stated that the opinion was “already done,” and that this resolved “all the matter here.”\n\nThe court nowhere indicated that there were aspects of the case that still needed to be resolved,\n\nnor explicitly stated that its “standard operating procedure” would be to send the opinion by\n\nemail to the parties at a later date. Consistent with the court’s oral pronouncement, the written\n\nopinion was issued on that same day. Accordingly, contrary to the plaintiff’s position, nothing in\n\n\n\n 10\n\fNo. 1-22-0265\n\n\nthe court’s statements during the December 7, hearing, can be reasonably read as tolling the time\n\nfor filing the plaintiff’s postjudgment motion.\n\n¶ 32 Moreover, even if the court’s statements could be read as such, our supreme court has\n\nrepeatedly rejected the position that the requisite 30-day period in which to file a postjudgment\n\nmotion is tolled until the parties have actual notice of the circuit court’s final order. See Granite\n\nCity Lodge No. 272, Loyal Order of the Moose v. City of Granite City, 141 Ill. 2d 122, 123\n\n(1990); Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 148-150 (1994).\n\n¶ 33 In Mitchell, the circuit court signed its order disposing of the case on February 27, 1991.\n\nThe order was file-stamped March 1, 1991, and included directions to the clerk of the circuit\n\ncourt to send a copy of the order to the attorneys of record. Mitchell, 158 Ill. 2d at 146. On April\n\n25, 1991, Mitchell’s counsel learned that the court had entered a ruling in the case. After\n\nconferring with opposing counsel and the court, Mitchell’s counsel filed a section 2-1401\n\npetition (Ill. Rev. Stat. 199, ch. 110, par. 2-1401) to withdraw or vacate the February 27, 1991,\n\norder. Id. On April 29, 1991, the court granted Mitchell’s petition, withdrew the judgment dated\n\nFebruary 27, 1991, and reentered the same order, effective April 29, 1991. Id. at 146-47.\n\nMitchell filed a timely notice of appeal of that order, and the appellate court upheld jurisdiction\n\nand considered Mitchell’s appeal on the merits. Id. at 147.\n\n¶ 34 Our supreme court reversed, concluding that the appellate court “improvidently took\n\njurisdiction over Mitchell’s appeal.” Id. at 148. In so concluding, the court reiterated its prior\n\nholding in Granite City, that “ ‘actual notice [of the trial court’s judgment] is not required, so\n\nlong as the order appealed from was expressed publicly, in words and at the situs of the\n\nproceeding.’ ” Id. (quoting Granite City, 141 Ill. 2d at 123). The court reiterated that an order is\n\ndeemed to have become public when it is filed with the clerk of the court, and that Rule 303\n\n\n\n 11\n\fNo. 1-22-0265\n\n\n“requires attorneys to monitor their cases to insure that appeals are timely filed.” Id. at 150; see\n\nalso Granite City, 141 Ill. 2d at 127.\n\n¶ 35 The Mitchell court also emphasized that trial courts lack the authority to extend the time\n\nfor filing a notice of appeal. Id. at 149. The court explained, in part, as follows:\n\n “The appellate court expressed concern over the unfairness of penalizing the litigant\n\n because his attorney relied on the circuit court’s incorrect directive. We are not\n\n insensitive to the concern expressed by the appellate court in the instant case. However,\n\n this court has general supervisory authority to oversee the administration of its own rules\n\n in the statewide system of courts. The circuit court’s attempt in the instant case to assist\n\n Mitchell’s counsel is understandable and well-intentioned, but neither the trial court nor\n\n the appellate court has the ‘authority to excuse compliance with the filing requirements\n\n of the supreme court rules governing appeals.’ ” (Emphasis added.) Id. at 150 (quoting In\n\n re Smith, 80 Ill. App. 3d 380, 382 (1980)).\n\n¶ 36 Applying Mitchell to the present case, we are compelled to conclude that the circuit\n\ncourt’s final judgment was expressed publicly, in words and at the situs of the proceedings on\n\nDecember 7, 2021, when the written order was file-stamped by the clerk of the circuit court.\n\nMitchell, 158 Ill. 2d at 148-49; Granite City, 141 Ill. 2d at 126-27. Indeed, the circuit court’s\n\nonline docket confirms that the final order was entered on December 7, 2021. 1 As already\n\ndiscussed above, the plaintiff therefore had until January 6, 2022, to file his postjudgment motion\n\nin order to toll the 30-day notice of appeal. Since the plaintiff filed his postjudgment motion on\n\nJanuary 7, his motion was untimely, and did not toll the requisite deadline. The fact that the\n\nplaintiff did not receive actual notice of the final judgment order until December 8, 2021, is of no\n\n\n1\n See Wells Fargo Bank, N.A. v. Simpson, 2015 IL App (1st) 142925, ¶ 24, n.4 (the appellate may take judicial\nnotice of the online docket reports of the circuit court of Cook county.)\n\n 12\n\fNo. 1-22-0265\n\n\nconsequence since it was the plaintiff’s counsel’s duty to “monitor his case closely enough” to\n\nknow when the circuit court had ruled. Mitchell, 158 Ill. 2d at 149.\n\n¶ 37 The plaintiff’s reliance on Comdisco, 306 Ill. App. 3d 197, to challenge this position, is\n\nunavailing. In that case, the trial judge issued a written opinion on July 29, 1997. Id. at 201.\n\nNearly a year later, on May 29, 1998, Comidsco filed a motion to modify that order and to enter\n\nfinal judgment. At a hearing on the motion to modify and enter final judgment, Comidsco argued\n\nthat it had never been notified of the ruling by either mail or telephone. Id. The trial judge stated\n\nthat he believed that Comidsco had “relied on the standard operating procedures” of the circuit\n\ncourt but nonetheless denied the motion to modify. Id.\n\n¶ 38 On appeal, this court held that because the trial judge’s statements in the record indicated\n\nthat Comidsco had relied on the court’s “standard operating procedure,” the trial court’s failure\n\nto follow that procedure warranted an equitable tolling of the time for filing an appeal. Id. at 202.\n\nAccordingly, we held that we had jurisdiction to consider the merits of the appeal. Id.\n\n¶ 39 At the outset, we note that Comdisco is inconsistent with our supreme court rules and the\n\nholding in Mitchell, both of which clearly hold that the appellate court does not have the\n\n“authority to excuse compliance with the filing requirements mandated by the supreme court\n\nrules.” Won, 2013 IL App (1st) 122523, ¶ 20; Graves, 2020 IL App (1st) 181516, ¶ 30; see also\n\nMitchell, 158 Ill. 2d at 150 (holding that an attorney cannot be excused from following the filing\n\nrequirements of Rule 303 merely because a lower court has recommended a procedural route that\n\nlies beyond that court’s authority to follow); see also Martin v. Cajda, 238 Ill. App. 3d 721, 728\n\n(1992) (“a trial court’s misapprehension of the law [will not] allow an appellant to file his notice\n\nof appeal more than 30 days after the trial court issues what actually constitutes a final order.”).\n\n¶ 40 Regardless, however, we also find that the facts of Comidsco are distinguishable from the\n\n\n\n 13\n\fNo. 1-22-0265\n\n\ninstant case. Unlike in Comidsco, the record before us fails to show that the plaintiff’s failure to\n\ntimely file his notice of appeal was due to his reliance on the court’s standard operating\n\nprocedure as opposed to his failure to monitor his case. Unlike Comidsco where the plaintiff\n\nasserted that he never received the trial court’s written order and was therefore never notified of\n\nthe court’s ruling by either mail or telephone, in the present case, after the trial judge explained\n\nits ruling in open court, and indicated that he was issuing an opinion, that same-day file-stamped\n\nopinion, was emailed to the plaintiff’s counsel the next morning. The plaintiff himself concedes\n\nthat his counsel received the email with the file-stamped order on December 8. It was counsel’s\n\nduty, upon receipt of that email, to check the file-stamp on the written order, and to monitor the\n\ndeadlines for his own case. Counsel should have immediately realized that he had 30 days from\n\nthe date of the file-stamped order, and 29 days from the date that he received the court’s email, in\n\nwhich to file his postjudgment motion. The fact that he chose to wait until January 7, 2022, 31\n\ndays after the final order was entered, and a day after the requisite deadline, was clearly an\n\noversight and not the result of any reliance on the court’s standard operating procedure.\n\nAccordingly, Comidsco does not apply.\n\n¶ 41 For these reasons, we are compelled to conclude that we have no jurisdiction to consider\n\nthis appeal.\n\n¶ 42 Appeal dismissed for lack of jurisdiction.\n\n\n\n\n 14\n\f"} {"dedup_key":"2023 IL App (1st) 221815-U","dedup_key_type":"neutral_citation","neutral_citation":"2023 IL App (1st) 221815-U","case_name":"Makiel v. Foxx","court_level":"Appellate","appellate_district":"1st","year":2023,"county":"Cook","appellate_docket":"1-22-1815","circuit_docket":"2021 CH 05621","published":0,"authoring_justice":"Walker","statute":["FOIA"],"exemptions_cited":["7(1)(d)(i)"],"public_body":"State's Attorney of Cook County","requesting_party":"Daniel Makiel","disposition":"reversed_and_remanded","relevance":"relevant","summary_source":"syllabus","summary":"The trial court erred in granting the defendant's motion for summary judgment because the defendant failed to demonstrate that the requested records were exempt from disclosure under section 7(1)(d)(i) of FOIA. The appellate court held that section 7(1)(d)(i) does not allow for a categorical assertion of an exemption without evidence of interference with a law enforcement proceeding.","best_text_source":"Court Opinions - FOIA/cleaned_text_files/Makiel v. Foxx, 2023 IL App (1st) 221815-U.txt","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:47.843598","site_category":"Police & Investigative Records","date_decided":"2023-12-20","site_url":"/cases/2023%20IL%20App%20(1st)%20221815-U/","text_url":"/case-text/2023%20IL%20App%20(1st)%20221815-U.txt","full_text":"2023 IL App (1st) 221815-U\r\nTHIRD DIVISION\r\nDecember 20, 2023\r\nNo. 1-22-1815\r\nNOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the\r\nlimited circumstances allowed under Rule 23(e)(1).\r\nIN THE\r\nAPPELLATE COURT OF ILLINOIS\r\nFIRST JUDICIAL DISTRICT\r\nDANIEL MAKIEL, ) Appeal from the Circuit Court of\r\n) Cook County.\r\nPlaintiff-Appellant, )\r\n)\r\nv. ) No. 2021 CH 05621\r\n)\r\nKIMBERLY FOXX, in her official capacity as )\r\nSTATE's S ATTORNEY of COOK COUNTY; )\r\n) Honorable Cecilia A. Horan,\r\nDefendant-Appellee. ) Judge, presiding.\r\nJUSTICE D.B. WALKER delivered the judgment of the court.\r\nJustices Lampkin and Van Tine concurred in the judgment.\r\nORDER\r\n\r\n¶ 1\r\nHeld: The trial court erred in granting defendant's s motion for summary judgment because defendant failed to demonstrate that plaintiff's s request of certain records were exempt from disclosure pursuant to section 7(1)(d)(i) of the Illinois Freedom of Information Act. Reversed and remanded.\r\n\r\n¶ 2\r\nPlaintiff Daniel Makiel filed a complaint for declaratory judgment and injunctive relief against defendant Kimberly Foxx in her capacity as the State's s Attorney of Cook County, Illinois. Plaintiff sought in part a declaration that section 7(1)(d)(i) of the Illinois Freedom of Information No. 1-22-1815 Act (FOIA)1 (5 ILCS 140/7(1)(d)(i) (West 2020)) did not exempt defendant Foxx from disclosing various documents related to a separate criminal case involving Makiel's s codefendant. Defendant filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 2022)), which the trial court granted. Plaintiff now appeals pro se from the trial court's s order granting the State's s summary judgment motion. Plaintiff contends in part that the trial court erred in finding that section 7(1)(d)(i) of FOIA allows for a “blanket exemption” from disclosing the records. For the following reasons, we reverse the judgment of the circuit court and remand this cause for further proceedings.\r\n\r\n¶ 3\r\nBACKGROUND\r\n\r\n¶ 4\r\nPlaintiff is currently incarcerated. He was convicted of the armed robbery and first-degree murder of Katherine Hoch and received consecutive sentences of 60 years’ and natural life imprisonment, respectively. See People v. Makiel, 263 Ill. App. 3d 54 (1994).\r\n\r\n¶ 5\r\nOn December 6, 2018, plaintiff filed a motion for leave to file a successive petition for postconviction relief.2 Plaintiff claimed in part that the State, in violation of Brady v. Maryland, 373 U.S. 83 (1963), failed to disclose that Alan Martin, a witness who placed plaintiff at the scene of the murder, “acted as a paid informant to set up drug cases against co-defendant Todd Hlinko.”\r\n\r\n¶ 6\r\nOn January 4, 2021, plaintiff submitted a FOIA request to the State's s Attorney's s Office of Cook County seeking various records in People v. Hlinko, No. 89CR7496(01). With the exception of trial transcripts, plaintiff requested all “reports, records, statements, forensic results, memorandum [sic], recordings (video and audio) and motions filed.” On January 19, 2021, the 1 For clarity, we refer to the Illinois Freedom of Information Act herein as either “FOIA” or “Illinois FOIA” and the federal Freedom of Information Act solely as “federal FOIA.” 2 The online docket of the trial court—of which this court may take judicial notice (see, e.g., People v. Grau, 263 Ill. App. 3d 874, 876 (1994))—indicates that the hearing on plaintiff's s successive postconviction petition was extended “by agreement” to January 19, 2024. 2 No. 1-22-1815 State responded that, since plaintiff had an active postconviction petition pending in the trial court, the requested records were exempt from disclosure pursuant to section 7(1)(d)(i) of FOIA because disclosure of the material would interfere with those proceedings. The State's s response did not claim the request was “unduly burdensome” and thus also exempt pursuant to section 3(g) of FOIA.\r\n\r\n¶ 7\r\nOn November 5, 2021, plaintiff filed a complaint seeking a declaratory judgment that section 7(1)(d)(i) of FOIA was inapplicable to his request. Plaintiff sought injunctive relief directing the State to provide plaintiff with either the requested material or alternatively an index specifying which exemptions apply.\r\n\r\n¶ 8\r\nOn January 24, 2022, the State filed a motion for summary judgment pursuant to section 2-1005 of the Code. The State argued that disclosure of the documents would “substantially alter” state laws governing postconviction discovery and that it could substantially delay the adjudication of plaintiff's s postconviction proceeding. The State further argued that plaintiff's s motion for leave to file a successive postconviction petition was still pending in the trial court and that this proceeding is a “law enforcement proceeding” for purposes of FOIA. Finally, the State argued that granting plaintiff's s request would necessarily interfere with a pending law enforcement proceeding (namely, his pending motion for leave to file a successive postconviction petition) because the trial court's s ruling on discovery matters in a postconviction proceeding is not appealable until the trial court has finally adjudicated the postconviction petition, whereas the trial court's s ruling on whether the State must disclose records pursuant to FOIA is immediately appealable. The State thus concluded summary judgment in its favor was warranted because granting plaintiff's s FOIA request “would expand post[]conviction discovery law.” The State did not attach any affidavits to its motion. 3 No. 1-22-1815\r\n\r\n¶ 9\r\nOn October 25, 2022, the trial court granted the State's s motion, finding that the records plaintiff requested were exempt from FOIA. This appeal follows.\r\n\r\n¶ 10\r\nANALYSIS\r\n\r\n¶ 11\r\nOn appeal, plaintiff contends that the trial court erroneously granted defendant's s motion for summary judgment. Plaintiff argues, in relevant part, that section 7(1)(d)(i) of FOIA does not allow for a “blanket application” exempting disclosure based upon an assertion that disclosure would interfere with contemplated law enforcement proceedings.\r\n\r\n¶ 12\r\nSummary judgment is appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2022). Summary judgment is a drastic measure and should only be granted when the moving party's s right to judgment is “clear and free from doubt.” Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). To determine whether there is a genuine issue of material fact, we construe the pleadings, depositions, admissions, and affidavits strictly against the moving party and liberally in favor of the opponent. Id. at 131-32. Unsupported conclusions, opinions, or speculation, however, will not raise a genuine issue of material fact. Id. at 132.\r\n\r\n¶ 13\r\nThis case requires that we interpret certain sections of FOIA. The foundational principles of statutory interpretation are well established. When construing a statute, our goal is to “ascertain and give effect to the intent of the legislature.” Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009). This inquiry begins with the language of the statute, “the best indicator of legislative intent.” Id. We presume that the General Assembly did not intend absurdity, inconvenience, or injustice. Carver v. Sheriff of La Salle County, 203 Ill. 2d 497, 508 (2003). Words should be given their plain and obvious meaning unless the legislative act changes that meaning. Hartney Fuel Oil Co. v. Hamer, 2013 IL 115130,\r\n\r\n¶ 25\r\n. In giving meaning to the words and clauses of a 4 No. 1-22-1815 statute, no part should be rendered superfluous. Id. Statutory provisions should also be read in concert and harmonized. Id. If further construction of a statute is necessary, a court may consider similar and related enactments. Id.\r\n\r\n¶ 14\r\nConsistent with these principles, “[w]hen a novel FOIA issue arises regarding the Illinois FOIA statute, Illinois courts often look to cases citing the federal FOIA statute [citation] for interpretation, due to the similarity of the statutes.” State Journal-Register v. University of Illinois Springfield, 2013 IL App (4th) 120881,\r\n\r\n¶ 21\r\n(citing Harwood v. McDonough, 344 Ill. App. 3d 242, 248 (2003)); but see Kelly v. Village of Kenilworth, 2019 IL App (1st) 170780,\r\n\r\n¶ 44\r\n(noting that, “while the federal FOIA provides an exemption where disclosure ‘could’ interfere with enforcement proceedings (5 U.S.C. § 552(b)(7)(A) (2018)), the Illinois FOIA provides an exemption only where disclosure ‘would’ interfere with enforcement proceedings or obstruct an ongoing investigation (5 ILCS 140/7(1)(d)(i), (vii) (West 2016))”) (citing Solar Sources, Inc. v. United States, 142 F.3d 1033, 1037 (7th Cir. 1998) (stating that, under the federal FOIA, the government need not establish that the release of a document would actually interfere with an enforcement proceeding)).\r\n\r\n¶ 15\r\nWith respect to FOIA, our legislature has declared that the public policy in Illinois is that “all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of [FOIA].” 5 ILCS 140/1 (West 2022). Accordingly, pursuant to section 1.2 of FOIA, “[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.” 5 ILCS 140/1.2 (West 2022).\r\n\r\n¶ 16\r\nThere are, of course, exemptions to this presumption. Our legislature has thus directed that “[r]estraints on access to information, to the extent permitted by this Act [FOIA], are limited exceptions to the principle that the people of this State have a right to full disclosure of information 5 No. 1-22-1815 relating to 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 in accordance with this principle.” (Emphasis added.) 5 ILCS 140/1 (West 2022). Among the exemptions set forth in FOIA are records in the possession of any law enforcement agency for law enforcement purposes, but “only to the extent that disclosure would interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement *** agency ***.” 5 ILCS 140/7(1)(d)(i) (West 2022). The public entity claiming an exemption from disclosure has the burden to prove that claim by clear and convincing evidence. Id.; 5 ILCS 140/11(f) (West 2022).\r\n\r\n¶ 17\r\nSection 11(a) of FOIA provides that anyone who is denied access to “inspect or copy any public record by a public body may file suit for injunctive or declaratory relief.” 5 ILCS 140/11(a) (West 2022). Section 11(f) states that, in any such action, the court “shall conduct such in camera examination of the requested records as it finds appropriate to determine if such records or any part thereof may be withheld under any provision of” FOIA. 5 ILCS 140/11(f) (West 2022). Section 11(f) reiterates that the public body claiming an exemption has the burden of proving the exemption by clear and convincing evidence. Id. Although our supreme court has held that in camera review is “the most effective way for a public body to objectively demonstrate” that the claimed exemption applies (Illinois Education Ass's n v. Illinois State Board of Education, 204 Ill. 2d 456, 471 (2003)), a public body may also meet its burden of proving a statutory exemption through affidavits, in which case the court need not review the documents at issue in camera. See id. at 469. Nonetheless, the court has cautioned that “affidavits will not suffice if the public body's s claims are conclusory, merely recite statutory standards, or are too vague or sweeping.” Id.\r\n\r\n¶ 18\r\nWe review a trial court's s entry of summary judgment de novo. Best Buy Stores, L.P. v. Department of Revenue, 2020 IL App (1st) 191680,\r\n\r\n¶ 12\r\n(citing Outboard Marine, 154 Ill. 2d at 6 No. 1-22-1815 102). The interpretation of a statute is a question of law that we also review de novo. Id.\r\n\r\n¶ 17\r\n(citing Hartney Fuel Oil, 2013 IL 115130,\r\n\r\n¶ 16\r\n).\r\n\r\n¶ 19\r\nHere, plaintiff does not dispute that the records in question were in possession of a law enforcement agency for law enforcement purposes. Plaintiff, however, argues in part that his motion for leave to file a successive postconviction petition is not a “law enforcement proceeding,” and that the State may not rely upon section 7(1)(d)(i) of FOIA for a “blanket” exemption from the entire investigative file. The State responds in part that a blanket exemption is warranted because it “necessarily” interferes with plaintiff's s postconviction proceedings.\r\n\r\n¶ 20\r\nAt the outset, we reject plaintiff's s claim that his motion for leave to file a successive postconviction petition is not a law enforcement proceeding. Specifically, plaintiff argues in reply that the phrase “law enforcement proceedings conducted by any law enforcement *** agency” in section 7(1)(d)(i) of FOIA would not comprise his motion for leave to file a successive postconviction petition because he “initiated” the proceedings. We disagree. Here, the State is actively resisting plaintiff's s motion, which could eventually include a motion to dismiss or other actions to defeat plaintiff's s motion. To hold as plaintiff wishes would result in the exemption in section 7(1)(d)(i) never being available to the State when a convicted individual files a postconviction petition or other collateral attack. We may not presume the legislature intended such an absurd result. See Carver, 203 Ill. 2d at 508. Plaintiff's s claim is thus meritless.\r\n\r\n¶ 21\r\nWith respect to whether plaintiff's s FOIA request will interfere with a pending law enforcement proceeding, the trial court's s reliance upon Johnson v. F.B.I., 118 F. Supp. 3d 784 (E.D. Pa. 2015), provides guidance to this court. In that case, the plaintiff was an investigator for the Philadelphia Federal Community Defender Office (the federal defender). Id. at 788. The federal defender represented an individual, Odell Corley, regarding his postconviction motion to “vacate, set aside, or correct his sentences.” Id. at 788-89. The plaintiff filed a federal FOIA 7 No. 1-22-1815 request with defendant on behalf of Corley seeking all records concerning the FBI's s investigation of the offense for which Corley had been convicted. Id. at 789.\r\n\r\n¶ 22\r\nThe FBI initially refused, claiming that the requested material was “located in an investigative file exempt from disclosure pursuant to [federal] FOIA Exemption 7(A).”3 The plaintiff appealed the FBI's s decision to the Department of Justice Office of Information Policy (“OIP”), which remanded plaintiff's s request to the FBI for further processing. Id. at 789. Following remand, the FBI located approximately 5,827 pages of potentially responsive records and 23 electronic media items. Id. The FBI subsequently released a total of 181 pages in part. Id. The FBI again stated that certain information was exempt pursuant to, inter alia, exemption 7(A) because the requested material “was located in an investigative file exempt from disclosure pursuant to [federal] FOIA Exemption 7(A).” Id. The plaintiff appealed for a second time to the OIP, which affirmed the FBI's s refusal and found that the information was exempt from disclosure under exemption 7(A). Id. The plaintiff then filed a complaint with the district court. Id.\r\n\r\n¶ 23\r\nThe parties subsequently filed cross-motions for summary judgment, and the FBI cited, inter alia, exemption 7(A) as a basis for its position. Id. According to the district court, the FBI also produced “declarations by two agents familiar with the FBI's s records and record-keeping practices *** to that effect.” Id. The plaintiff argued that the FBI's s “invocation of Exemption 7(A) as a categorical exemption is inappropriate.” Id.\r\n\r\n¶ 24\r\nAlthough the court found that the disclosure of previously undisclosed information “could” reasonably lead to interference with enforcement proceedings, the court further stated that the FBI did not “adequately assert[] Exemption 7(A) categorically.” Id. at 794. After noting that the types 3 Exemption 7(A) permits an agency to withhold records “compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information *** could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). 8 No. 1-22-1815 of harm articulated in one of the FBI's s declarations was contingent upon the assumption that the information was not already public, the court determined that the applicability of the exemption depended upon “ ‘the subject matter which each individual record contains,’ rather than ‘upon the category of records.’ ” Id. at 795 (quoting Church of Scientology of California v. I.R.S., 792 F.2d 146, 152 (D.C. Cir. 1986)). The court thus denied both motions for summary judgment and directed the bureau to either disclose the requested materials or provide the court with supplemental affidavits or declarations justifying the decision to withhold the materials. Id. at 800.\r\n\r\n¶ 25\r\nHere, by contrast, there is nothing in the record to indicate that the State provided sufficiently detailed affidavits or the documents themselves for an in camera inspection; rather, the State baldly asserted that the entire investigative file would interfere with the proceedings. As in Johnson, however, plaintiff here has already been on trial, so we are in the dark as to what information, if any, has already been made publicly available. We therefore reject the State's s argument and agree with this court's s holding in Kelly, 2019 IL App (1st) 170780,\r\n\r\n¶ 39\r\n, that section 7(1)(d) of FOIA does not authorize “a generic approach” of claiming a blanket exemption over an entire file, especially where, as here, potentially all of the information has already been disclosed publicly. Accord Ballew v. Chicago Police Department, 2022 IL App (1st) 210715,\r\n\r\n¶ 24\r\n(“Plaintiff argues that ‘there is no blanket exemption [under section 7(1)(d) of FOIA] for records simply because an investigation is ongoing.’ We agree.”); see also National Ass's n of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 12 (2010) (observing that it is “possible” but not likely that the disclosure of requested documents could compromise an ongoing investigation, “even with all identifying information redacted”).\r\n\r\n¶ 26\r\nSince section 7(1)(d) does not permit blanket exemptions, defendants did not demonstrate that the scope of the exemption permitted by the trial court was appropriate here. Consequently, we must reverse the trial court's s order granting defendant's s motion for summary judgment and 9 No. 1-22-1815 remand this cause for further proceedings to determine whether the material requested is exempt under section 7(1)(d)(i) of FOIA.\r\n\r\n¶ 27\r\nAlthough the State cites numerous cases in support of its argument, none are availing. In Watford v. Rowe, 2021 IL App (5th) 190434-U,\r\n\r\n¶ 23\r\n, the plaintiff filed a motion for discovery in his postconviction proceedings, which the trial court denied after having found that the plaintiff had not shown “good cause” to grant his discovery request, so the plaintiff then filed a FOIA request. Here, there is nothing in the record (nor does the State make this claim) to indicate that plaintiff is similarly attempting to circumvent the postconviction court's s discovery order. In Kansi v. U.S. Department of Justice, 11 F. Supp. 2d 42 (D.D.C. 1998), the defendant allowed the release of over 750 pages of documents but claimed an exemption with respect to the remaining 13,524 pages, which the defendant supported with “a declaration and categorical description of the documents at issue.” Id. at 43 n.1. Here, however, no such support on the part of defendant was presented to the trial court. Finally, in N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978), the court agreed with the federal appellate court that the amendment of the “[federal FOIA] Exemption 7 was designed to eliminate ‘blanket exemptions’ for Government records simply because they were found in investigatory files compiled for law enforcement purposes.” Id. at 236. The court, however, disagreed that “no generic determinations of likely interference can ever be made.” Id. The court instead held that, in the case before it, “prehearing disclosure of witnesses’ statements would involve the kind of harm that Congress believed would constitute an ‘interference’ with NLRB enforcement proceedings: that of giving a party litigant earlier and greater access to the Board's s case than he would otherwise have.” (Emphasis added.) Id. at 241. No such risk is present in this case. Watford, Kansi, and Robbins Tire are therefore unavailing. 10 No. 1-22-1815\r\n\r\n¶ 28\r\nCONCLUSION\r\n\r\n¶ 29\r\nSection 7(1)(d)(i) of FOIA does not provide for the categorical assertion of an exemption from disclosure. Defendant has provided no evidence to demonstrate that disclosing any of the records plaintiff requested would have interfered with a law enforcement proceeding. Therefore, the trial court erroneously granted defendant's s motion for summary judgment. Accordingly, we reverse the judgment of the circuit court of Cook County and remand for further proceedings consistent with this opinion.\r\n\r\n¶ 30\r\nReversed and remanded for further proceedings. 11"} {"dedup_key":"2023 IL App (2d) 220349","dedup_key_type":"neutral_citation","neutral_citation":"2023 IL App (2d) 220349","case_name":"Kenneally v. Department of Corrections","court_level":"Appellate","appellate_district":"2nd","year":2023,"county":"Caption","appellate_docket":"2-22-0349","circuit_docket":"21-CH-74","published":1,"authoring_justice":"McLaren","statute":["FOIA"],"exemptions_cited":["7(1)(a)"],"public_body":"Department of Corrections","requesting_party":"Patrick D. Kenneally, McHenry County State’s Attorney","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that the specific disclosure requirements under section 3-5-1(b) of the Unified Code of Corrections control over the general disclosure provisions of FOIA. Because the Department of Corrections did not approve the disclosure of the requested master record files, the trial court's grant of summary judgment in favor of the Department was affirmed.","best_text_source":"Court Opinions - FOIA/Kenneally v. Department of Corrections, 2023 IL App (2d) 220349.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:48.890274","site_category":"General Records Exemptions","date_decided":"2023-06-22","site_url":"/cases/2023%20IL%20App%20(2d)%20220349/","text_url":"/case-text/2023%20IL%20App%20(2d)%20220349.txt","full_text":" Digitally signed by\n Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2024.05.28\n 14:29:14 -05'00'\n\n\n\n Kenneally v. Department of Corrections, 2023 IL App (2d) 220349\n\n\n\nAppellate Court PATRICK D. KENNEALLY, in His Official Capacity as McHenry\nCaption County State’s Attorney, Plaintiff-Appellant, v. THE DEPARTMENT\n OF CORRECTIONS, Defendant-Appellee.\n\n\n\nDistrict & No. Second District\n No. 2-22-0349\n\n\n\nFiled June 22, 2023\n\n\n\nDecision Under Appeal from the Circuit Court of McHenry County, No. 21-CH-74;\nReview the Hon. Michael J. Chmiel, Judge, presiding.\n\n\n\nJudgment Affirmed.\n\n\nCounsel on Patrick D. Kenneally, State’s Attorney, of Woodstock (Tom Cahill,\nAppeal Assistant State’s Attorney, of counsel), for appellant.\n\n Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,\n Solicitor General, and Leigh J. Jahnig, Assistant Attorney General, of\n counsel), for appellee.\n\n\n\nPanel PRESIDING JUSTICE McLAREN delivered the judgment of the\n court, with opinion.\n Justices Birkett and Kennedy concurred in the judgment and opinion.\n\f OPINION\n\n¶1 Plaintiff, Patrick D. Kenneally, in his official capacity as McHenry County State’s Attorney\n (State’s Attorney), sued the Department of Corrections (Department) pursuant to the Freedom\n of Information Act (Act) (5 ILCS 140/1 et seq. (West 2020)). The State’s Attorney alleged\n that, in violation of the Act, the Department refused to disclose information on certain\n individuals who had been released from the Department. The State’s Attorney appeals from\n the entry of a summary judgment in the Department’s favor. We affirm.\n\n¶2 I. BACKGROUND\n¶3 On May 26, 2021, the State’s Attorney filed a complaint for declaratory and injunctive\n relief against Rob Jeffreys, in his official capacity as director of the Department. The State’s\n Attorney later amended the complaint to name the Department itself (instead of Jeffreys) as\n defendant. The amended complaint alleged that, on January 21, 2021, the State’s Attorney sent\n the Department a written request under the Act, seeking information about certain formerly\n incarcerated individuals. On January 28, 2021, the Department denied the request in a letter\n indicating that, under section 7(1)(a) of the Act (id. § 7(1)(a)), the requested information was\n exempt from disclosure because state law prohibited disclosure, namely, section 3-5-1(b) of\n the Unified Code of Corrections (Code of Corrections) (730 ILCS 5/3-5-1(b) (West 2020)).\n According to the complaint, section 3-5-1(b) protected only the information of persons\n “committed” to the Department. Id. The complaint alleged that section 3-5-1(b) did not apply,\n because the State’s Attorney sought information about released individuals. The complaint\n alternatively alleged that, even if section 3-5-1(b) applied, it did not prohibit releasing the\n requested information to law enforcement agencies. The complaint asked the court to declare\n the Department in violation of the Act and order it to produce the requested records.\n¶4 After the Department filed its answer, the parties filed cross-motions for summary\n judgment. On May 12, 2022, the court granted the State’s Attorney’s motion and denied the\n Department’s cross-motion. The court ordered the Department to produce the requested\n material and to pay a $2500 civil penalty. However, the Department moved for reconsideration.\n The court granted the motion, vacated the May 12, 2022, order, and entered judgment in favor\n of the Department. The State’s Attorney filed a timely notice of appeal.\n\n¶5 II. ANALYSIS\n¶6 Summary judgment is proper “if the pleadings, depositions, and admissions on file,\n together with the affidavits, if any, show that there is no genuine issue as to any material fact\n and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)\n (West 2020). We review de novo the trial court’s ruling on a summary judgment motion.\n Chicago Sun-Times v. Cook County Health & Hospitals System, 2022 IL 127519, ¶ 24. When,\n as in this case, the parties file cross-motions for summary judgment, “they agree that only a\n question of law is involved and invite the court to decide the issues based on the record.” Pielet\n v. Pielet, 2012 IL 112064, ¶ 28.\n¶7 Section 1.2 of the Act (5 ILCS 140/1.2 (West 2020)) provides, “All records in the custody\n or possession of a public body are presumed to be open to inspection or copying. Any public\n\n\n\n -2-\n\f body that asserts that a record is exempt from disclosure has the burden of proving by clear\n and convincing evidence that it is exempt.” As pertinent here, the term “public body” means:\n “all legislative, executive, administrative, or advisory bodies of the State, state\n universities and colleges, counties, townships, cities, villages, incorporated towns,\n school districts and all other municipal corporations, boards, bureaus, committees, or\n commissions of this State, any subsidiary bodies of any of the foregoing including but\n not limited to committees and subcommittees thereof, and a School Finance Authority\n created under Article 1E of the School Code.” Id. § 2(a).\n A public body’s records are “ ‘[p]ublic records’ ” (id. § 2(c)), and unless exempt under section\n 7 of the Act (id. § 7), they must be available for inspection or copying (id. § 3(a)) or available\n online (id. § 8.5(a)). In addition, upon written request and subject to payment of appropriate\n fees, the public body shall provide a copy of any nonexempt public record that is not available\n online. Id. §§ 3(b)-(c), 6.\n¶8 Under section 7(1)(a) of the Act (id. § 7(1)(a)), “[i]nformation specifically prohibited from\n disclosure by federal or State law or rules and regulations implementing federal or State law”\n is exempt from inspection and copying. The letter denying the State’s Attorney’s request cited\n section 3-5-1 of the Code of Corrections (730 ILCS 5/3-5-1 (West 2020)), which requires the\n Department and the Department of Juvenile Justice to maintain a master record file on each\n person committed to them. Id. § 3-5-1(a). Section 3-5-1(b) provides, in pertinent part, “All\n [master record] files shall be confidential and access shall be limited to authorized personnel\n of the respective Department. Personnel of other correctional, welfare or law enforcement\n agencies may have access to files under rules and regulations of the respective Department.”\n Id. § 3-5-1(b).\n¶9 Whether the materials requested by the State’s Attorney were exempt from disclosure\n depends on how we interpret section 7(1)(a) of the Act and section 3-5-1(b) of the Code of\n Corrections. 1 This presents a question of law. See McHenry Township v. County of McHenry,\n 2022 IL 127258, ¶ 55. As our supreme court has recently explained:\n “The cardinal principle and primary objective in construing a statute is to ascertain and\n give effect to the intention of the legislature. [Citation.] The best indicator of legislative\n intent is the statutory language itself, given its plain and ordinary meaning. [Citation.]\n Where the language is clear and unambiguous, we must apply the statute without resort\n to further aids of statutory construction. [Citation.] Only if the statutory language is\n ambiguous may we look to other sources to ascertain the legislature’s intent.\n [Citation.]” Cothron v. White Castle System, Inc., 2023 IL 128004, ¶ 20.\n Statutory language is ambiguous when it is “ ‘capable of being understood in two or more\n different senses by reasonably well-informed people.’ ” County of Peoria v. Couture, 2022 IL\n App (3d) 210091, ¶ 70 (quoting Wal-Mart Stores, Inc. v. Industrial Comm’n, 324 Ill. App. 3d\n 961, 967 (2001)).\n¶ 10 Of section 7(1)(a) of the Act, we have said:\n “[E]ven if a statute does not specifically provide that records are exempt from\n disclosure under [the Act] or otherwise contain an explicit prohibition against public\n\n\n The State’s Attorney has abandoned his argument that section 3-5-1(b) does not apply because he\n 1\n\n sought information only about individuals who had been released from the Department.\n\n -3-\n\f disclosure, records are nevertheless exempt ‘where the plain language contained in a\n State or federal statute reveals that public access to the records was not intended.’\n [Citation.] On the other hand, section 7(1)(a) does not apply ‘where a State or federal\n statute is ambiguous or silent in regard to the disclosure of public records.’ [Citation.]”\n Better Government Ass’n v. Zaruba, 2014 IL App (2d) 140071, ¶ 21.\n¶ 11 In its written order granting the Department’s motion for reconsideration, the trial court\n noted that the “use of ‘may’ [in section 3-5-1(b)] embodies an important element of discretion.”\n The court added that it “cannot find where [section 3-5-1(b)] or any other body of law must\n ‘specifically prohibit’ release of the requested items before the above-noted discretion can be\n utilized to simply deny the same.” The State’s Attorney argues that the court overlooked the\n language of section 7(1)(a) of the Act. According to the State’s Attorney, “[h]ad the trial court\n applied the law correctly and followed [section 7(1)(a)’s] requirement that[,] in order to assert\n the exemption, the information must be specifically prohibited from release, the trial court\n would have ruled in [the State’s Attorney’s] favor.” This is so, according to the State’s\n Attorney, because “the plain and unambiguous language of [section 3-5-1(b)] states that ***\n [the] personnel of *** law enforcement agencies [other than the Department], may have access\n to files.” As seen however, section 3-5-1(b) actually provides that such personnel “may have\n access to files under rules and regulations of the *** Department.” (Emphasis added.) 730 ILS\n 5/3-5-1(b) (West 2020). The Department’s regulations provide that “[p]ersonnel of other ***\n law enforcement agencies may have access to an offender’s files, as approved by the Chief\n Administrative Officer.” (Emphasis added.) 20 Ill. Adm. Code 107.310(d) (2013). The “ ‘Chief\n Administrative Officer’ ” is “the person designated by the Director to exercise the powers and\n duties of the Department of Corrections in regard to committed persons within a correctional\n institution or facility.” 730 ILCS 5/3-1-2(a) (West 2020); see 20 Ill. Adm. Code 525.110(c)\n (2011) (“ ‘Chief Administrative Officer’ means the highest ranking official of a correctional\n facility.”). The State’s Attorney does not contend that the chief administrative officer(s)\n approved giving him access to the requested materials; thus, under the plain language of section\n 3-5-1(b) of the Code of Corrections, the State’s Attorney was not entitled to access the\n materials. Although section 3-5-1(b) does not expressly prohibit disclosure of the materials, it\n plainly indicates an intent to restrict access. See Zaruba, 2014 IL App (2d) 140071, ¶ 21.\n Hence, for purposes of section 7(1)(a), the materials were “specifically prohibited from\n disclosure” (5 ILCS 140/7(1)(a) (West 2020)), when those words are given their plain and\n ordinary meaning.\n¶ 12 We note that the Department argues that section 3-5-1(b) gives it “discretion” to disclose\n the materials the State’s Attorney requested. Seizing upon that argument, the State’s Attorney\n argues in his reply brief that “[d]iscretionary does not mean specifically prohibited.” Again,\n however, the State’s Attorney overlooks the fact that, under section 3-5-1(b), he may have\n access to the requested materials only “under rules and regulations of the *** Department.”\n 730 ILCS 5/3-5-1(b) (West 2020). The State’s Attorney’s argument would create a conflict\n between the Act and section 3-5-1(b) because the words “under rules and regulations of the\n *** Department” (id.) would serve no purpose if the Act did not recognize an exemption for\n materials not subject to disclosure under those rules and regulations. “[W]here there is an\n alleged conflict between two statutes, a court has a duty to construe those statutes in a manner\n that avoids an inconsistency and gives effect to both statutes, where such an interpretation is\n reasonably possible.” McNamee v. Federated Equipment & Supply Co., 181 Ill. 2d 415, 427\n\n\n -4-\n\f (1998). Here, we could avoid the conflict by interpreting section 7(1)(a) of the Act to mean\n that disclosure of the requested materials was “specifically prohibited” (5 ILCS 140/7(1)(a)\n (West 2020)) because the chief administrative officer(s) did not approve the disclosure. If this\n interpretation is “reasonably possible,” the State’s Attorney cannot prevail.\n¶ 13 Unfortunately for the State’s Attorney, he also cannot prevail even if this interpretation is\n not reasonably possible. If we cannot resolve the conflict by interpreting “specifically\n prohibited” in the manner described, we would be forced to resort to the principle that “when\n two conflicting statutes cover the same subject, the specific governs the general.” (Internal\n quotation marks omitted.) Kloeppel v. Champaign County Board, 2022 IL 127997, ¶ 22. “This\n canon of statutory interpretation is perhaps most frequently applied to statutes in which a\n general permission or prohibition is contradicted by a specific prohibition or permission. To\n eliminate the contradiction, the specific provision is construed as an exception to the general\n one.” (Internal quotation marks omitted.) Id. Moreover, this principle applies regardless of the\n priority of enactment of the two statutes. Id. (citing People ex rel. Madigan v. Burge, 2014 IL\n 115635, ¶ 32).\n¶ 14 Here, section 7(1)(a) of the Act and section 3-5-1(b) of the Code of Corrections both cover\n the subject of access to public records. However, section 7(1)(a) is far more general in scope,\n as it applies to records of any “public body,” which means:\n “all legislative, executive, administrative, or advisory bodies of the State, state\n universities and colleges, counties, townships, cities, villages, incorporated towns,\n school districts and all other municipal corporations, boards, bureaus, committees, or\n commissions of this State, any subsidiary bodies of any of the foregoing including but\n not limited to committees and subcommittees thereof, and a School Finance Authority\n created under Article 1E of the School Code.” 5 ILCS 140/2(a) (West 2020).\n In contrast, section 3-5-1(b) of the Code of Corrections applies specifically to one type of\n public record: the master record file for a person committed to the Department or the\n Department of Juvenile Justice. See Howard v. Weitekamp, 2015 IL App (4th) 150037, ¶ 17.\n Accordingly, even if we agreed with the State’s Attorney’s interpretation of section 7(1)(a),\n we would find that the more specific provision—section 3-5-1(b)—controls here. As\n explained, because the chief administrative officer(s) did not approve the disclosure to the\n State’s Attorney, he is not entitled to access the requested materials. Thus, the trial court\n properly granted the Department’s motion for summary judgment.\n\n¶ 15 III. CONCLUSION\n¶ 16 For the reasons stated, we affirm the judgment of the circuit court of McHenry County.\n\n¶ 17 Affirmed.\n\n\n\n\n -5-\n\f"} {"dedup_key":"2023 IL App (3d) 210520","dedup_key_type":"neutral_citation","neutral_citation":"2023 IL App (3d) 210520","case_name":"Edgar County Watchdogs v. Joliet Township","court_level":"Appellate","appellate_district":"3rd","year":2023,"county":"Edgar","appellate_docket":"3-21-0520","circuit_docket":"20-CH-683","published":1,"authoring_justice":"Hettel","statute":["FOIA"],"exemptions_cited":[],"public_body":"Joliet Township","requesting_party":"Edgar County Watchdogs and Kirk Allen","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that a public body does not act in bad faith under FOIA by requesting reimbursement for third-party costs incurred to fulfill a request for a hard drive image when the public body lacks the internal expertise to perform the task. Consequently, the court affirmed the denial of civil penalties against the Township.","best_text_source":"Court Opinions - FOIA/Edgar County Watchdogs v. Joliet Township, 2023 IL App (3d) 210520.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:50.317169","site_category":"Fees & Burdensome Requests","date_decided":"2023-02-23","site_url":"/cases/2023%20IL%20App%20(3d)%20210520/","text_url":"/case-text/2023%20IL%20App%20(3d)%20210520.txt","full_text":" Digitally signed by\n Reporter of Decisions\n Reason: I attest to the\n Illinois Official Reports accuracy and integrity\n of this document\n Date: 2024.01.05\n Appellate Court 12:31:14 -06'00'\n\n\n\n\n Edgar County Watchdogs v. Joliet Township, 2023 IL App (3d) 210520\n\n\n\nAppellate Court EDGAR COUNTY WATCHDOGS and KIRK ALLEN, Plaintiffs-\nCaption Appellants, v. JOLIET TOWNSHIP, Defendant-Appellee.\n\n\n\nDistrict & No. Third District\n No. 3-21-0520\n\n\n\nFiled February 23, 2023\n\n\n\nDecision Under Appeal from the Circuit Court of Will County, No. 20-CH-683; the\nReview Hon. Theodore J. Jarz, Judge, presiding.\n\n\n\nJudgment Affirmed.\n\n\nCounsel on Matthew Topic, Josh Loevy, Merrick Wayne, and Shelley Geiszler, of\nAppeal Loevy & Loevy, of Chicago, for appellants.\n\n Tammy S. Warden, of Tracy, Johnson & Wilson, of Joliet, for\n appellee.\n\n\n\nPanel JUSTICE HETTEL delivered the judgment of the court, with opinion.\n Justices Davenport and McDade concurred in the judgment and\n opinion.\n\f OPINION\n\n¶1 Plaintiff Kirk Allen, on behalf of plaintiff Edgar County Watchdogs, submitted a request\n pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2020)) to\n defendant Joliet Township (Township), seeking “[a] copy of the hard drive contents” of a\n specified computer owned by the Township. The Township responded by seeking payment\n from plaintiffs for the costs of copying the hard drive and obtaining a storage device. Plaintiffs\n refused to pay and, instead, filed a complaint in circuit court alleging that the Township\n violated the FOIA. After both parties filed motions for summary judgment, the court entered\n an order requiring the Township to provide plaintiffs with all documents stored on the\n computer. Plaintiffs filed a petition for attorney fees, costs, and civil penalties, which the court\n denied. Plaintiffs appeal, arguing that the trial court erred in denying them attorney fees, costs,\n and civil penalties. We affirm.\n\n¶2 I. BACKGROUND\n¶3 On June 9, 2020, Allen, on behalf of Edgar County Watchdogs, submitted a FOIA request\n to the defendant Township, seeking in part: “A copy of the hard drive contents of the Dell XPS\n computer, serial number N781BU6.” Allen asserted in his request that he qualified “as both\n media and non-profit” under the FOIA. He further asserted: “The purpose of the request is to\n access and disseminate information regarding the legal rights of the general public and is not\n for the principal purpose of personal or commercial benefit.” Allen requested the records be\n sent to him “in electronic format.”\n¶4 On June 23, 2020, Township supervisor Daniel Vera responded to Allen as follows:\n “We have been working with our IT company and they have informed us in order\n to make a copy of the hard drive it will require the following—\n 2 hours of IT work at $150/hour\n Plus the cost of the device you choose for the information.\n We are waiting for the quote in writing and will provide to you as soon as we\n receive it.”\n¶5 Three days later, Vera sent an e-mail to Allen, which stated: “Attached is the quote from\n the IT Company.” Vera attached an invoice from NJS Enterprises, Inc., to the Township\n reflecting a total of $350 in charges, consisting of (1) $300 for “Onsite visit to install imaging\n software[;] Image Dell XPS computer with Serial#N781BU6 to an external hard drive[;]\n Create vhd FILE OF Computer” and (2) $50 for “Computer Equipment 500GB External Hard\n drive.”\n¶6 On July 3, 2020, Allen responded to Vera as follows: “While I appreciate you providing\n me a quote to the Township, that is not a quote or invoice to me. If you are asking that I pay\n the amount in the quote to the Township, please provide me an invoice accordingly so we can\n obtain the public records.” On July 14, 2020, Vera responded by stating: “Attached is the\n invoice for the costs that will be incurred from our IT company. This is something that must\n be completed by our outside IT company[.]” Vera attached an invoice from the Township to\n “Edgar County WatchDogs” for “IT Costs” totaling $350, which included (1) $300 for “Onsite\n visit to create vhd file of computer #N781BU6 (2hrs at $150/hr)” and (2) $50 for “500 GB\n external hard drive.” On July 15, 2020, Allen responded: “While I understand what your\n\n -2-\n\f outside IT company must do, can you tell me what statutory basis which you are using for the\n fees being assessed?” The Township did not respond.\n¶7 On August 21, 2020, plaintiffs filed a complaint against the Township in circuit court. In\n their complaint, plaintiffs alleged that Allen “qualifies as ‘news media’ ” and worked for Edgar\n County Watchdogs, “a registered non-profit organization and an online news media website.”\n In counts I and II of their complaint, plaintiffs alleged that the Township violated the FOIA by\n failing to produce and search for the records plaintiffs requested. In count III, plaintiffs alleged\n that the Township “willfully and intentionally” failed to comply with the FOIA.\n¶8 In December 2020, plaintiffs filed a motion for partial summary judgment, arguing that the\n records they sought in their FOIA request should be “immediately released” to them. In\n February 2021, the Township filed a cross-motion for summary judgment, asserting that its\n “employees do not have the expertise to copy the hard drive of the subject computer on their\n own.” Therefore, the Township argued it should be allowed to charge plaintiffs for the costs it\n would incur from “an IT company that [does] have the expertise to make a copy of the subject\n computer hard drive.”\n¶9 A hearing on the motions was held in May 2021. At the hearing, the court stated: “I don’t\n think there is any dispute over whether—[the Township] want[s] to produce the records.”\n However, there appeared to be confusion about what plaintiffs were seeking. The judge stated:\n “[I]t wasn’t clear to me whether you were just looking for copies of computer documents or\n really getting into the hidden data so to speak that would be contained on the hard drive.”\n Counsel for the Township expressed her belief that plaintiffs’ FOIA request sought a copy of\n the hard drive itself, not just the documents on the hard drive. When the trial court questioned\n plaintiffs’ counsel regarding whether plaintiffs “just wanted the documents” or also the\n “metadata” or “hidden meat so to speak” from the hard drive, plaintiffs’ counsel responded:\n “There is no need to read anybody’s mind, right? We can just look at the language\n of the request. I mean, in this case I do know what they want is the records, the contents\n of the hard drive. And that’s also—I’m just reading the words from the request itself\n which is, you know, copied from the complaint, attached to the complaint. It’s just the\n contents of that hard drive. Not some big technological feat.”\n¶ 10 At the conclusion of the hearing, the trial court ordered the Township to “copy the\n documents on the computer and send them to the plaintiff within 28 days.” The court expressed\n its belief that Township employees “could make that transfer” because it involved the “simple\n copying of the documents that are stored in the computer.” Because no expert technical skills\n were required, the court ruled the Township was not entitled to any fees for responding to the\n FOIA request. Thereafter, the court entered a written order stating as follows: “Defendant to\n produce the hard drive contents of the computer at issue in this case by June 8, 2021. Hard\n drive contents shall mean copies of all documents stored on the computer. Meta data need not\n be reproduced.”\n¶ 11 On June 8, 2021, the Township provided plaintiffs with the documents stored on the\n computer. Thereafter, plaintiffs filed a petition for attorney fees, costs, and civil penalties,\n seeking attorney fees of $17,782.50 to $19,220.00, costs of $474.52, and civil penalties of\n $2500 from the Township. The Township filed a response arguing that plaintiffs were not\n entitled to attorney fees, costs, or civil penalties because the Township did not violate the FOIA\n and plaintiffs did not prevail in their FOIA action because they never obtained what they really\n\n\n -3-\n\f wanted, “namely an actual copy of the hard drive of a specific computer in Defendant’s\n possession, including metadata on that hard drive.”\n¶ 12 In October 2021, the trial court held a hearing on plaintiffs’ petition. At the hearing, the\n trial court found that plaintiffs’ FOIA request “wasn’t clear” and “wasn’t explained” by\n plaintiffs. When the litigation began, the court did not know if plaintiffs were seeking the entire\n hard drive “and all its metadata” or “just copies of documents.” When plaintiffs referred the\n court to “the plain language of the request,” the court responded, “That plain language of the\n request led me to believe that you wanted a complete copy of the hard drive which includes an\n awful lot of metadata, and you can’t get it just by pressing buttons.” The court did not believe\n that, prior to filing its lawsuit, plaintiffs ever made it clear to the Township that they “weren’t\n looking for all the metadata” on the computer but only wanted “copies of the documents.” The\n trial court denied plaintiffs’ petition for attorney fees, costs, and civil penalties, stating, “I think\n this lawsuit was unnecessary, and I think if you would have made a reasonable attempt to\n clarify your request before bringing it, we wouldn’t be here today.”\n\n¶ 13 II. ANALYSIS\n¶ 14 Under the FOIA, a public body “is obligated to make its public records available for\n inspection and copying.” Martinez v. Cook County State’s Attorney’s Office, 2018 IL App (1st)\n 163153, ¶ 14 (citing Nelson v. Kendall County, 2014 IL 116303, ¶ 27). “The purpose of FOIA\n is to open governmental records to the light of public scrutiny.” Id. (citing Day v. City of\n Chicago, 388 Ill. App. 3d 70, 73 (2009)).\n¶ 15 Section 6 of the FOIA (5 ILCS 140/6 (West 2020)) addresses fees a public body can charge\n for producing documents pursuant to a FOIA request. That section provides in pertinent part:\n “(a) When a person requests a copy of a record maintained in an electronic format,\n the public body shall furnish it in the electronic format specified by the requester, if\n feasible. If it is not feasible to furnish the public records in the specified electronic\n format, then the public body shall furnish it in the format in which it is maintained by\n the public body, or in paper format at the option of the requester. A public body may\n charge the requester for the actual cost of purchasing the recording medium, whether\n disc, diskette, tape, or other medium. If a request is not a request for a commercial\n purpose or a voluminous request, a public body may not charge the requester for the\n costs of any search for and review of the records or other personnel costs associated\n with reproducing the records. Except to the extent that the General Assembly expressly\n provides, statutory fees applicable to copies of public records when furnished in a paper\n format shall not be applicable to those records when furnished in an electronic format.\n ***\n (b) Except when a fee is otherwise fixed by statute, each public body may charge\n fees reasonably calculated to reimburse its actual cost for reproducing and certifying\n public records and for the use, by any person, of the equipment of the public body to\n copy records. *** In calculating its actual cost for reproducing records or for the use of\n the equipment of the public body to reproduce records, a public body shall not include\n the costs of any search for and review of the records or other personnel costs associated\n with reproducing the records, except for commercial requests as provided in subsection\n (f) of this Section. Such fees shall be imposed according to a standard scale of fees,\n\n\n -4-\n\f established and made public by the body imposing them. The cost for certifying a\n record shall not exceed $1.\n ***\n (d) The imposition of a fee not consistent with subsections (6)(a) and (b) of this Act\n constitutes a denial of access to public records for the purposes of judicial review.” Id.\n § 6(a), (b), (d).\n¶ 16 A person denied access to inspect or copy a public record by a public body “may file suit\n for injunctive or declaratory relief.” Id. § 11(a). If an individual “prevails” in such a\n proceeding, “the court shall award such person reasonable attorney’s fees and costs.” Id.\n § 11(i). “In determining what amount of attorney’s fees is reasonable, the court shall consider\n the degree to which the relief obtained relates to the relief sought.” Id. Additionally, “[i]f the\n court determines that a public body willfully and intentionally failed to comply with this Act,\n or otherwise acted in bad faith, the court shall also impose upon the public body a civil penalty\n of not less than $2,500 nor more than $5,000 for each occurrence.” Id. § 11(j).\n\n¶ 17 A. Attorney Fees and Costs\n¶ 18 Plaintiffs argue that the trial court erred in denying their petition for attorney fees and costs\n because they succeeded in their FOIA claim by obtaining a court order requiring the Township\n to provide them with the documents contained on the Township’s computer. The Township\n responds that plaintiffs did not prevail in their FOIA action because plaintiffs did not receive\n what they sought in their FOIA request—a copy of the computer hard drive.\n¶ 19 We review a trial court’s decision about a party’s entitlement to attorney fees under the\n FOIA for an abuse of discretion. Rockford Police Benevolent & Protective Ass’n v. Morrissey,\n 398 Ill. App. 3d 145, 154 (2010). “An abuse of discretion exists where no reasonable person\n would agree with the position of the trial court.” Brax v. Kennedy, 363 Ill. App. 3d 343, 355\n (2005).\n¶ 20 The primary purpose of the FOIA’s fee-shifting provision is “to ensure enforcement of the\n FOIA.” Hamer v. Lentz, 132 Ill. 2d 49, 62 (1989). “This is accomplished by removing the\n burden of legal fees, which might deter litigants from pursuing legitimate FOIA actions.” Id.\n The fee-shifting provision was not “intended as either a reward for successful plaintiffs or as a\n punishment against the government.” Id. Another goal of the fee-shifting provision is “to avoid\n unnecessary litigation by encouraging citizens to seek legal advice before filing suit.” Id.\n¶ 21 Prior to 2010, the award of attorney fees to a successful plaintiff in a FOIA case was\n discretionary, not mandatory. See Uptown People’s Law Center v. Department of Corrections,\n 2014 IL App (1st) 130161, ¶ 13. At that time, the FOIA’s attorney fees provision stated:\n “If a person seeking the right to inspect or receive a copy of a public record substantially\n prevails in a proceeding under this Section, the court may award such person\n reasonable attorneys’ fees and costs. If, however, the court finds that the fundamental\n purpose of the request was to further the commercial interests of the requestor, the court\n may award reasonable attorneys’ fees and costs if the court finds that the record or\n records in question were of clearly significant interest to the general public and that the\n public body lacked any reasonable basis in law for withholding the record.” 5 ILCS\n 140/11(i) (West 2008).\n\n\n\n -5-\n\f¶ 22 Under the prior version of the FOIA, “for a plaintiff to be awarded attorney fees, the\n plaintiff had to be both ‘eligible’ and ‘entitled’ to the fees.” Donley v. City of Springfield, 2022\n IL App (4th) 210378, ¶ 41 (citing Duncan Publishing, Inc. v. City of Chicago, 304 Ill. App. 3d\n 778, 787 (1999)). “Eligibility depended on whether the plaintiff ‘substantially’ prevailed, and\n entitlement depended on whether ‘the record or records in question clearly were of significant\n interest to the general public and that the public body lacked any reasonable basis in law for\n withholding the record.’ ” Id. (quoting Duncan Publishing, Inc., 304 Ill. App. 3d at 786).\n¶ 23 However, in 2010, our legislature amended section 11(i) of the FOIA to provide: “If a\n person seeking the right to inspect or receive a copy of a public record prevails in a proceeding\n under this Section, the court shall award such person reasonable attorneys’ fees and costs.”\n (Emphases added.) 5 ILCS 140/11(i) (West 2010). In the amended version, the legislature\n deleted the word “substantially” and changed “may” to “shall.” Pub. Act 96-542, § 10 (eff.\n Jan. 1, 2010) (amending 5 ILCS 140/11(i)). The legislature also removed the language\n requiring that the public entity lack any reasonable basis for rejecting a request. Id. Now, under\n section 11(i) of the FOIA, a trial court must award reasonable attorney fees and costs to a\n plaintiff who prevails in a FOIA action. 5 ILCS 140/11(i) (West 2020); see Chicago Tribune\n Co. v. Cook County Assessor’s Office, 2018 IL App (1st) 170455, ¶ 44; Uptown People’s Law\n Center, 2014 IL App (1st) 130161, ¶ 18.\n¶ 24 The 2010 amendments to the FOIA reflect the legislature’s “intention to be more favorable\n to individuals who make meritorious FOIA requests.” Uptown People’s Law Center, 2014 IL\n App (1st) 130161, ¶ 18. However, the amendments were not intended to “open the floodgates\n for any litigant—meritorious or not—to receive attorney fees.” Donley, 2022 IL App (4th)\n 210378, ¶ 43. Through its amendments, the legislature “removed the question of entitlement\n from the attorney fees analysis but not the question of eligibility.” Id. To prove eligibility, “the\n inquiry is whether the filing of suit was reasonably necessary to obtain the information and a\n causal nexus exists between the action and the agency’s surrender of the information.” Duncan,\n 304 Ill. App. 3d at 786. Thus, to prevail under the current version of the FOIA, four\n requirements must be met: (1) “a lawsuit against the public entity,” (2) “the document’s\n production,” (3) “the lawsuit to have caused the production of the documents,” and (4) “the\n lawsuit to have been reasonably necessary to obtain those documents.” Donley, 2022 IL App\n (4th) 210378, ¶ 40.\n¶ 25 A plaintiff who receives documents it sought following litigation does not “always\n prevail[ ] within the meaning of the FOIA.” (Emphasis in original.) Id. ¶ 38. This is true\n because “prevailing under the FOIA requires more than the simple correlation of (1) a lawsuit\n against the public entity and (2) the document’s production.” Id. ¶ 40. A plaintiff does not\n prevail if it “did not need to file a lawsuit to obtain the documents” but only needed to clarify\n or amend its FOIA request so the public body could “make an informed decision as to whether\n to disclose the documents.” See id. ¶¶ 47, 51.\n¶ 26 Here, the court entered an order requiring the Township to provide documents to plaintiffs\n after plaintiffs filed their FOIA lawsuit. Therefore, plaintiff met three of the requirements\n necessary to “prevail.” See id. ¶ 40. However, the trial court found plaintiffs’ lawsuit\n “unnecessary” and opined that it could have been avoided if plaintiffs had “made a reasonable\n attempt to clarify [their] request before bringing [suit].” Because plaintiffs could have obtained\n the documents they sought by clarifying their FOIA request instead of filing suit, plaintiffs’\n lawsuit was not “reasonably necessary to obtain the documents.” Thus, plaintiffs did not meet\n\n -6-\n\f the fourth requirement necessary to “prevail” under the FOIA, and the trial court properly\n denied plaintiffs’ request for attorney fees and costs. See id. ¶¶ 40, 47, 51.\n¶ 27 The trial court’s denial of attorney fees and costs in this case is consistent with the purposes\n of the FOIA’s fee-shifting provision. The purposes of the provision are “to ensure enforcement\n of the FOIA” and “to avoid unnecessary litigation,” not to reward successful plaintiffs or\n punish the government. Hamer, 132 Ill. 2d at 62. In this case, plaintiffs’ FOIA litigation was\n unnecessary to ensure the Township’s compliance with the FOIA. As the trial court explained,\n the Township “want[ed] to produce the records” but did not understand what records plaintiffs\n were seeking. Instead of filing a lawsuit, plaintiffs could have much more easily clarified their\n FOIA request. If plaintiffs had done so, the Township would have provided plaintiffs the\n documents they wanted, and both parties would have avoided unnecessary litigation and\n litigation expenses, including attorney fees and costs. Under these circumstances, the purposes\n of the FOIA’s fee-shifting provision support the trial court’s denial of attorney fees and costs\n to plaintiffs in this case. See Donley, 2022 IL App (4th) 210378, ¶ 50.\n\n¶ 28 B. Civil Penalties\n¶ 29 Plaintiffs also argue that the trial court erred in denying their request for civil penalties\n because the Township’s demand of $350 in fees for production of the requested materials\n constituted a “willful, intentional, and bad faith violation of FOIA.” The Township responds\n that its request for fees from plaintiffs was reasonable and not made in bad faith.\n¶ 30 Under section 11(j) of the FOIA (5 ILCS 140/11(j) (West 2020)), plaintiffs are entitled to\n civil penalties if they can show a public body willfully, intentionally, and in bad faith failed to\n comply with the FOIA. Williams v. Bruscato, 2021 IL App (2d) 190971, ¶ 14. “[T]o warrant\n the imposition of a civil penalty under section 11(j), the public body not only must have\n intentionally failed to comply with the FOIA but must have done so deliberately, by design,\n and with a dishonest purpose.” Id. ¶ 15.\n¶ 31 Whether a public body willfully, intentionally, and in bad faith failed to comply with the\n FOIA is reviewed under the manifest-weight-of-the-evidence standard. Rock River Times v.\n Rockford Public School District 205, 2012 IL App (2d) 110879, ¶ 48. A trial court’s decision\n is against the manifest weight of the evidence “only when an opposite conclusion is apparent\n or when findings appear to be unreasonable, arbitrary, or not based on evidence.” Judgment\n Services Corp. v. Sullivan, 321 Ill. App. 3d 151, 154 (2001).\n¶ 32 Here, the trial court found that the Township did not willfully, intentionally, and in bad\n faith fail to comply with the FOIA, stating that the Township “want[ed] to produce the records”\n but did not understand what plaintiffs were asking it to produce. We agree.\n¶ 33 The Township reasonably interpreted plaintiffs’ FOIA request as a request for a copy of\n the hard drive of the specified Township computer, which would require duplication of all\n operating systems, software, files, and data, including metadata, contained on the hard drive.\n See Alliance of Artists & Recording Cos. v. General Motors Co., 162 F. Supp. 3d 8, 14 (D.D.C.\n 2016); John B. v. Goetz, 879 F. Supp. 2d 787, 880 (M.D. Tenn. 2010); United States v. Metter,\n 860 F. Supp. 2d 205, 210 n.3 (E.D.N.Y. 2012). Township personnel lacked the expertise to\n copy the computer’s hard drive, so the Township consulted an information technology (IT)\n company to do so. The IT company informed the Township that the cost to copy the hard drive\n was $350: $300 for installing the imaging software on the computer and copying the hard drive\n\n\n -7-\n\f and $50 for an “external hard drive” on which a copy of the computer’s hard drive would be\n recorded.\n¶ 34 Section 6(a) of the FOIA authorized the Township to charge plaintiffs $50 for the external\n hard drive as the Township’s “actual cost of purchasing the recording medium.” See 5 ILCS\n 140/6(a) (West 2020). Courts have ruled that a public body cannot charge more than the cost\n of the electronic recording device when a FOIA requester seeks electronic records. See Sage\n Information Services v. Suhr, 2014 IL App (2d) 130708, ¶ 20; Sage Information Services v.\n Humm, 2012 IL App (5th) 110580, ¶ 18. However, in those cases, the public bodies incurred\n no additional costs for obtaining and reproducing the materials requested by the plaintiffs.\n¶ 35 In drafting section 6 of the FOIA, the legislature seemed to presume that no costs would\n be borne by a public body in responding to a FOIA request other than the cost of purchasing a\n recording medium because the public body’s “personnel” would be able to “reproduc[e] the\n records” requested. See 5 ILCS 140/6(a) (West 2020). Here, where the Township’s personnel\n lacked the expertise to produce what the Township believed plaintiffs were requesting—a copy\n of the hard drive itself—the Township sought to pass on the costs it incurred in responding to\n plaintiffs’ request to plaintiffs, the requester. While no provision of the FOIA expressly\n allowed the Township to request such fees from plaintiffs, the Township’s request was not\n made for a dishonest purpose and, therefore, did not amount to bad faith. See Williams, 2021\n IL App (2d) 190971, ¶ 15. The Township merely attempted to recoup its costs from the party\n requesting the information, rather than passing on those costs to Township taxpayers.\n¶ 36 Based on the facts of this case, the trial court’s finding that the Township did not willfully,\n intentionally, and in bad faith fail to comply with the FOIA was not against the manifest weight\n of the evidence. The trial court properly denied plaintiffs’ request for civil penalties.\n\n¶ 37 III. CONCLUSION\n¶ 38 The judgment of the circuit court of Will County is affirmed.\n\n¶ 39 Affirmed.\n\n\n\n\n -8-\n\f"} {"dedup_key":"2023 IL App (3d) 220392","dedup_key_type":"neutral_citation","neutral_citation":"2023 IL App (3d) 220392","case_name":"Kieken v. City of Joliet","court_level":"Appellate","appellate_district":"3rd","year":2023,"county":"Will","appellate_docket":"3-22-0392","circuit_docket":"21-CH-448","published":1,"authoring_justice":"Davenport","statute":["FOIA"],"exemptions_cited":[],"public_body":"City of Joliet","requesting_party":"John Kieken","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed an award of attorney fees to a FOIA requester, holding that the plaintiff was a prevailing party entitled to fees even though the City produced the requested documents after the complaint was filed, rendering the underlying request moot. The court found no abuse of discretion in the circuit court's determination of reasonable attorney fees.","best_text_source":"Court Opinions - FOIA/Kieken v. City of Joliet, 2023 IL App (3d) 220392.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:50.722441","site_category":"Fees & Burdensome Requests","date_decided":"2023-10-17","site_url":"/cases/2023%20IL%20App%20(3d)%20220392/","text_url":"/case-text/2023%20IL%20App%20(3d)%20220392.txt","full_text":" Digitally signed\n by Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2024.03.19\n 09:49:02 -05'00'\n\n\n\n Kieken v. City of Joliet, 2023 IL App (3d) 220392\n\n\n\nAppellate Court JOHN KIEKEN, Plaintiff-Appellee and Cross-Appellant, v. THE\nCaption CITY OF JOLIET, Defendant-Appellant and Cross-Appellee.\n\n\n\nDistrict & No. Third District\n No. 3-22-0392\n\n\n\nFiled October 17, 2023\n\n\n\nDecision Under Appeal from the Circuit Court of Will County, No. 21-CH-448; the\nReview Hon. John Pavich, Judge, presiding.\n\n\n\nJudgment Affirmed.\n\n\nCounsel on Todd C. Lenzie, of City of Joliet, of Joliet, for appellant.\nAppeal\n Robert Fioretti, of Fioretti Campbell LLC, Peter Vincent Bustamante,\n and Richard F. Linden, all of Chicago, for appellee.\n\n\n\nPanel JUSTICE DAVENPORT delivered the judgment of the court, with\n opinion.\n Justices McDade and Brennan concurred in the judgment and opinion.\n\f OPINION\n\n¶1 Plaintiff, John Kieken, filed a complaint seeking to compel the City of Joliet (City) to\n produce documents requested under the Freedom of Information Act (FOIA) (5 ILCS 140/1\n et seq. (West 2020)). The City tendered the requested documents within two weeks of the filing\n of plaintiff’s complaint and before the first hearing on the matter. Thereafter, the circuit court\n denied plaintiff’s request to compel the City’s compliance with FOIA, finding his request\n moot. The court, nevertheless, found plaintiff had prevailed and awarded him statutory attorney\n fees. The City now appeals from the fee award, arguing plaintiff was not entitled to any\n attorney fees and, alternatively, the fee award should be reduced. Plaintiff cross-appeals,\n arguing the fee award should be increased. For the reasons that follow, we affirm.\n\n¶2 I. BACKGROUND\n¶3 Plaintiff is one of the founders of Stop NorthPoint, LLC, an organization seeking to prevent\n the construction of an industrial business park in Will County (NorthPoint Development). The\n City scheduled a hearing on December 21, 2021, to vote on whether the construction of the\n NorthPoint Development would be allowed to proceed. On November 15, 2021, plaintiff\n submitted a FOIA request to the City for all traffic and environmental studies related to the\n NorthPoint Development. On November 19, 2021, the City denied the request, citing the\n deliberative-process exemption under FOIA (5 ILCS 140/7(1)(f) (West 2020)) and claiming\n no records existed concerning environmental studies.\n¶4 On December 3, 2021, plaintiff filed a complaint seeking “an injunction and/or declaratory\n judgment requiring the City of Joliet to produce forthwith the requested documents.” The\n complaint also sought reasonable attorney fees pursuant to section 11(i) of FOIA. 5 ILCS\n 140/11(i) (West 2020).\n¶5 On December 7, 2021, plaintiff filed an emergency motion for a temporary restraining\n order (TRO) or preliminary injunction. His motion asked the court to compel the City to\n produce the documents sought in his FOIA request and to stay the December 21 city council\n hearing until traffic studies were provided and plaintiff had an opportunity to review them. The\n motion also sought reasonable attorney fees pursuant to section 11(i). The hearing on the\n motion was scheduled for December 15, 2021.\n¶6 On December 9, 2021, the City sent plaintiff’s counsel an April 2020 traffic impact study\n prepared by a private consulting firm on behalf of NorthPoint Development. On December 14,\n 2021, the City sent plaintiff’s counsel a December 2021 traffic impact study prepared by the\n same private consulting firm on behalf of NorthPoint Development. Both studies were marked\n as drafts.\n¶7 On December 16, 2021, the court denied as moot plaintiff’s request for an order compelling\n the City to produce documents responsive to his FOIA request. The court also denied plaintiff’s\n request to stay the December 21 city council hearing, finding FOIA did not sanction such a\n remedy.\n¶8 On January 5, 2022, plaintiff moved for attorney fees and costs pursuant to section 11(i).\n In response, the City contested plaintiff’s entitlement to attorney fees and costs, arguing he\n was not the “prevailing party” under section 11(i).\n\n\n\n -2-\n\f¶9 On April 28, 2022, the court ruled that plaintiff prevailed and instructed him to submit a\n fee petition.\n\n¶ 10 A. Plaintiff’s Fee Petition\n¶ 11 On May 25, 2022, plaintiff filed a petition for $62,396 in attorney fees and costs. Attached\n to the petition were affidavits and time records of plaintiff’s attorneys in this case: Richard\n Linden, Robert Fioretti, and Peter Bustamante. Linden recorded spending 76.1 hours on the\n case at a proposed hourly rate of $650, for a total of $49,465. Fioretti recorded 16.4 hours at a\n proposed hourly rate of $675, for a total of $11,070. Bustamante recorded 2.3 hours at a\n proposed hourly rate of $650, for a total of $1495. At the time of the petition, Linden had been\n in practice for over 30 years and Fioretti and Bustamente for over 40 years. Plaintiff attached\n a representation agreement in which he agreed to pay Linden, Fioretti, and Bustamente $675\n per hour for their work on this case. Plaintiff also attached copies of affidavits by two attorneys,\n Mitchell Katten and Elizabeth Hubbard, attesting to the reasonableness of Linden’s and\n Bustamante’s $650 hourly rate. The original affidavits had been filed on behalf of John\n Nawara, the plaintiff in Nawara v. County of Cook, No. 17-C-2393 (N.D. Ill.), a federal court\n case involving the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.\n (2018)). Also attached to the petition was a copy of a representation agreement in which\n Nawara agreed to pay Linden and Bustamente $650 per hour.\n¶ 12 In addition, plaintiff attached the Laffey Matrix, an attorney fee matrix used to evaluate\n “requests for attorney fees in civil cases in District of Columbia courts.” The Laffey Matrix\n showed a gradation of hourly rates for attorneys of varying experience levels. According to the\n matrix, attorneys with more than 31 years of experience were entitled to $665 per hour in 2020-\n 21. Plaintiff also attached an adjusted Laffey Matrix, which assigned a $919 hourly rate for\n attorneys out of law school for more than 20 years.\n¶ 13 The City countered that (1) the attorneys’ claimed billing entries were excessive and (2) the\n proposed hourly rates were unreasonable for a FOIA case and unreasonable for the Will\n County/Joliet market. The City submitted the affidavit of a Joliet-based attorney who practiced\n “commercial and contract litigation and municipal/school law.” The affiant, who had been in\n practice for over 20 years and a law firm partner since 2003, attested to charging $300 per hour\n for private clients and between $145 and $210 per hour for public clients.\n\n¶ 14 B. Fee Award\n¶ 15 On September 14, 2022, the circuit court awarded plaintiff $20,742.50 in attorney fees.\n The court found the hourly rate requested by plaintiff’s counsel “far greater than [the rate]\n customarily sought in the Will County/Joliet area.” It observed that, in its own experience,\n “attorneys with credentials similar to those of Plaintiff’s attorneys typically seek an hourly rate\n in the range of $300-$350.” Accordingly, it approved an hourly rate of $375 for Fioretti and\n $350 for Linden and Bustamante. It awarded Linden $14,980, Fioretti $5325, and Bustamante\n $437.50. In so doing, the court granted “the full request for hours clearly spent on the FOIA\n request,” “approximately one-half of the requested hours” for work performed on the TRO\n portion of the case, and one-half of the requested hours for work performed in connection with\n the fees.\n¶ 16 In halving the number of hours in the TRO and fee-related portions of the case, the court\n explained that the TRO was unsuccessful, and it seemed unreasonable that more than half of\n\n -3-\n\f the billing related to fees. This appeal and cross-appeal followed.\n\n¶ 17 II. ANALYSIS\n¶ 18 On appeal, the parties dispute the propriety and reasonableness of the court’s fee award.\n The City argues plaintiff is not entitled to any attorney fees absent court-ordered relief.\n Alternatively, it argues the fee award should have been reduced further so as not to punish the\n City for plaintiff’s choice of filing a FOIA lawsuit when a less time-consuming review process\n was available under section 9.5 of FOIA. 5 ILCS 140/9.5 (West 2020). In his cross-appeal,\n plaintiff argues the circuit court abused its discretion in reducing his attorneys’ hourly rates\n and in reducing their hours for work performed in connection with the TRO request and fee\n litigation.\n\n¶ 19 A. Plaintiff’s Entitlement to Attorney Fees\n¶ 20 The City asserts, preliminarily, that court-ordered relief is a prerequisite to a section 11(i)\n fee award. Relying on this theory, the City urges us to find plaintiff was not entitled to any\n attorney fees. The City characterizes this issue as one of statutory construction but fails to\n provide the pertinent statutory language or discuss the statutory construction principles\n supporting its theory. And although the City cites one published case in support of its position,\n it fails to discuss that case in any way. In fact, the City fails to submit any reason for its theory.\n It states, in conclusory fashion, “[The City] provided the requested documents without a court\n order. On December 16, 2021, the Trial Court denied [plaintiff’s] request as moot, and he did\n not prevail.” Illinois Supreme Court Rule 341 provides that the appellant’s opening brief “shall\n contain the contentions of the appellant and the reasons therefor.” (Emphasis added.) Ill. S.\n Ct. R. 341(h)(7) (eff. Oct. 1, 2020). This court “is not a repository into which an appellant may\n foist the burden of argument and research.” Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993).\n Accordingly, we find the City has forfeited this argument by failing to comply with Rule\n 341(h)(7).\n¶ 21 Forfeiture notwithstanding, we acknowledge that the districts of this court are divided as\n to whether court-ordered relief is a prerequisite to a section 11(i) fee award. The current version\n of section 11(i) provides, in pertinent part,\n “If a person seeking the right to inspect or receive a copy of a public record prevails in\n a proceeding under this Section, the court shall award such person reasonable attorney’s\n fees and costs. In determining what amount of attorney’s fees is reasonable, the court\n shall consider the degree to which the relief obtained relates to the relief sought.” 5\n ILCS 140/11(i) (West 2020).\n According to the Second District, this section requires “nothing less than court-ordered relief\n in order for a party to be entitled to attorney fees under the FOIA.” Rock River Times v.\n Rockford Public School District 205, 2012 IL App (2d) 110879, ¶ 40. The Second District is\n alone in this regard. The First, Fourth, and Fifth Districts have all held that court-ordered relief\n is not a prerequisite to an attorney fee award under FOIA. Uptown People’s Law Center v.\n Department of Corrections, 2014 IL App (1st) 130161, ¶ 27; Martinez v. City of Springfield,\n 2022 IL App (4th) 210290, ¶ 43; Perdue v. Village of Tower Hill, 2015 IL App (5th) 140357-\n U, ¶ 29. We agree with the First, Fourth, and Fifth Districts.\n\n\n\n -4-\n\f¶ 22 To prevail under section 11(i) of FOIA, plaintiff need not be the recipient of court-ordered\n relief. However, the following requirements must be met: (1) plaintiff filed a lawsuit against a\n public entity, (2) the entity produced the requested documents, (3) the lawsuit caused the\n documents’ production, and (4) the lawsuit was reasonably necessary to obtain those\n documents. Edgar County Watchdogs v. Joliet Township, 2023 IL App (3d) 210520, ¶ 24\n (citing Donley v. City of Springfield, 2022 IL App (4th) 210378, ¶ 40). A decision concerning\n a party’s entitlement to attorney fees under FOIA is reviewed for an abuse of discretion. Joliet\n Township, 2023 IL App (3d) 210520, ¶ 19.\n¶ 23 The City contests the fourth requirement of the four-part test set forth in Joliet Township.\n It argues plaintiff cannot show his lawsuit was necessary because it did not yield court-ordered\n relief and because plaintiff always had the right to file a request for review with the Public\n Access Counselor (PAC) in the Office of the Attorney General (5 ILCS 140/9.5 (West 2020)).\n Neither basis affirmatively rebuts the reasonable necessity of plaintiff’s lawsuit. First, the\n absence of court-ordered relief is not dispositive under the test adopted by this court in Joliet\n Township. As the majority of districts have held, court-ordered relief is not a prerequisite to an\n attorney fee award under the current version of section 11(i). Supra ¶ 21. Second, reasonable\n necessity is not vitiated by the presence of a statutory PAC review option; that would be\n contrary to section 11(i)’s purpose of encouraging “ ‘citizens to act rather like a private\n attorney general’ ” in enforcing FOIA. See Hamer v. Lentz, 132 Ill. 2d 49, 57-58 (1989)\n (quoting 83d Ill. Gen. Assem., House Proceedings, Oct. 20, 1983, at 44 (statements of\n Representative Currie)). Indeed, nothing in section 11(i) forecloses attorney fees when the\n plaintiff chooses litigation over PAC review. The City seeks to add a limitation to section 11(i)\n where there is none. A court may not depart from the plain language and meaning of a clear\n statute “by reading into it exceptions, limitations, or conditions that the legislature did not\n express.” Lawler v. University of Chicago Medical Center, 2017 IL 120745, ¶ 12. Accordingly,\n we decline to read into section 11(i) an exception that forecloses attorney fees when PAC\n review is available.\n¶ 24 Here, the court concluded “under the guidance of the Uptown decision and [upon]\n application of the ‘catalyst’ theory” that plaintiff was the prevailing party. See Uptown\n People’s Law Center, 2014 IL App (1st) 130161, ¶ 15 (“ ‘[T]he inquiry is whether the filing\n of suit was reasonably necessary to obtain the information and a causal nexus exists between\n the action and the agency’s surrender of the information.’ ” (quoting Duncan Publishing, Inc.\n v. City of Chicago, 304 Ill. App. 3d 778, 786 (1999))). The catalyst theory is consistent with\n the third and fourth requirements adopted by this court in Joliet Township. The third\n requirement, that the lawsuit caused the documents’ production, is a reasonable conclusion—\n and one the City does not contest. As for the fourth requirement, we have already established\n the City’s failure to refute the reasonable necessity of plaintiff’s FOIA lawsuit. See supra ¶ 23.\n We observe that the City tendered documents only after plaintiff filed his complaint and the\n auxiliary TRO motion. We further observe that the complaint and TRO motion did not amend\n or clarify plaintiff’s FOIA request such that the City could then “make an informed decision\n as to whether to disclose the documents.” Donley, 2022 IL App (4th) 210378, ¶ 51. In other\n words, the City had all the necessary information when plaintiff submitted his FOIA request;\n plaintiff’s subsequent lawsuit provided no new insights. On this record, plaintiff’s lawsuit was\n reasonably necessary to obtain the requested documents. The court did not abuse its discretion\n in finding plaintiff entitled to a fee award.\n\n\n -5-\n\f¶ 25 B. Reasonable Attorney Fees\n¶ 26 In his cross-appeal, plaintiff argues the circuit court erred in reducing his attorney fees and\n costs from the requested amount, $62,396, to $20,742.50. Specifically, plaintiff challenges\n what he calls an arbitrary reduction of his attorneys’ hourly rates and of the hours logged in\n relation to the TRO request and attorney fees. The City, on the other hand, argues that a\n reasonable number of hours should be only what would be necessary to file a request for PAC\n review.\n¶ 27 The circuit court is “particularly well-qualified to make the partially subjective findings\n necessary for an award of fees.” (Internal quotation marks omitted.) Peraica v. Riverside-\n Brookfield High School District No. 208, 2013 IL App (1st) 122351, ¶ 34. Accordingly, its\n “award of attorney fees under FOIA will not be disturbed absent an abuse of discretion.”\n Chicago Tribune Co. v. Cook County Assessor’s Office, 2018 IL App (1st) 170455, ¶ 46. “An\n abuse of discretion occurs only when the trial court’s decision is arbitrary, fanciful, or\n unreasonable or where no reasonable person would take the view adopted by the trial court.”\n Seymour v. Collins, 2015 IL 118432, ¶ 41.\n¶ 28 In determining reasonable attorney fees, Illinois courts conduct a multifactor analysis.\n Relevant factors include “the skill and standing of the attorney, the nature of the case, the\n novelty and difficulty of the question at issue, the amount and importance of the subject matter,\n the degree of responsibility, the usual and customary charges and the benefits to the client.”\n Black v. Iovino, 219 Ill. App. 3d 378, 396 (1991). Here, the court indicated it “considered all\n of the required factors to be taken into account.” In reducing the attorneys’ proposed hourly\n rates, the court agreed with the City’s affiant that an appropriate hourly rate was around $300.\n It stated that, in its experience, “attorneys with credentials similar to those of Plaintiff’s\n attorneys typically seek an hourly rate in the range of $300-$350.” We have no reason to\n question the court’s experience. “The trial court may and should rely on its own knowledge\n and experience when determining the reasonableness of the fees sought.” McHenry Savings\n Bank v. Autoworks of Wauconda, Inc., 399 Ill. App. 3d 104, 113 (2010).\n¶ 29 Moreover, the court did not improperly disregard the District of Columbia Laffey Matrix\n or the affidavits submitted in Nawara v. County of Cook. “In a contingent, statutory fee-\n shifting case such as this, a reasonable hourly rate is the prevailing market rate in the relevant\n legal community for similar services by lawyers of reasonably comparable skills, experience,\n and reputation.” (Internal quotation marks omitted.) Demitro v. General Motors Acceptance\n Corp., 388 Ill. App. 3d 15, 23 (2009). This matter was not litigated in the District of Columbia,\n rendering the Laffey Matrix inapposite. And unlike Nawara v. County of Cook, this case did\n not involve an ADA matter and was not litigated in the federal court. Accordingly, we find the\n court did not abuse its discretion in reducing the proposed hourly rates.\n¶ 30 We further find the court acted within its discretion in reducing the hours related to the\n emergency TRO motion. The court explained that it reduced the hours in relation to the TRO\n motion because the motion was denied and it was “therefore obviously unsuccessful.”\n¶ 31 Plaintiff argues the TRO motion was, in fact, successful because it resulted in the release\n of the draft traffic studies. Although the motion may have certainly expedited the traffic\n studies’ release, that is not to say the motion was necessary for their ultimate release.\n Furthermore, the TRO motion went beyond the bounds of FOIA when it sought to stay the city\n council hearing until the requested documents’ release. In view of the foregoing, the court did\n not unreasonably reduce the attorneys’ hours in connection with the TRO motion.\n\n -6-\n\f¶ 32 Unsatisfied with the court’s decision to reduce hours, the City urges us to eliminate all fees\n requested in connection with the TRO motion. This we will not do. The City released the first\n traffic study only two days after plaintiff filed his TRO motion, which directly challenged the\n City’s denial of plaintiff’s FOIA request. The TRO motion was thus reasonably related to the\n case’s ultimate outcome. We will not disturb the fee award as it relates to the TRO motion.\n¶ 33 The City further requests we consider “when determining reasonable fees” that plaintiff\n chose the more complicated and time-consuming route of litigation. Plaintiff’s fees, the City\n contends, should be no more than what would have been necessary to apply for PAC review.\n This is a curious contention, one the City fails to support with statutory or common-law\n authority. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (requiring appellant to support\n contentions with reasoning and authority citations). Moreover, in requesting that we determine\n reasonable fees, the City appears to get ahead of itself. The City has not demonstrated that the\n court abused its discretion in setting attorney fees. Absent an abuse of discretion, we will not\n substitute our judgment for that of the circuit court. Hanna v. Kelly, 91 Ill. App. 3d 896, 898\n (1980).\n¶ 34 Finally, plaintiff argues the court abused its discretion in reducing the hours related to fee\n litigation. We disagree. The court noted it seemed unreasonable that the fee litigation\n accounted for more than half of the billing. The circuit court is not bound by the petitioning\n attorney’s opinion as to what constitutes a reasonable fee and may use its own knowledge and\n experience to make that determination. Black, 219 Ill. App. 3d at 396. On the record before\n this court, we cannot say that the court’s decision to halve the hours related to fees was\n arbitrary, fanciful, or unreasonable. Collins, 2015 IL 118432, ¶ 41.\n\n¶ 35 III. CONCLUSION\n¶ 36 For the foregoing reasons, the court’s fee award did not constitute an abuse of discretion.\n The judgment of the circuit court of Will County is affirmed.\n\n¶ 37 Affirmed.\n\n\n\n\n -7-\n\f"} {"dedup_key":"2023 IL App (4th) 220455-U","dedup_key_type":"neutral_citation","neutral_citation":"2023 IL App (4th) 220455-U","case_name":"Jamal Shehadeh v. Sangamon County Sheriff","court_level":"Appellate","appellate_district":"4th","year":2023,"county":"Sangamon","appellate_docket":"4-22-0455","circuit_docket":"21-MR-1626","published":0,"authoring_justice":"Steigmann","statute":["FOIA"],"exemptions_cited":["7(1)(e-10)"],"public_body":"Sangamon County Sheriff","requesting_party":"Jamal Shehadeh","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The appellate court affirmed summary judgment for the Sheriff, holding that the plaintiff failed to provide sufficient information in his FOIA request to trigger the exception to the section 7(1)(e-10) exemption. The court ruled that a public body is not required to independently investigate or search for litigation details to determine if a prisoner's request falls under the exemption's exception.","best_text_source":"Court Opinions - FOIA/Shehadeh v. Sangamon County Sheriff, 2023 IL App (4th) 220455-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:50.722539","site_category":"FOIA Response Process","date_decided":"2023-01-18","site_url":"/cases/2023%20IL%20App%20(4th)%20220455-U/","text_url":"/case-text/2023%20IL%20App%20(4th)%20220455-U.txt","full_text":" NOTICE 2023 IL App (4th) 220455-U\n FILED\nThis Order was filed under\n NO. 4-22-0455 January 18, 2023\nSupreme Court Rule 23 and is Carla Bender\nnot precedent except in the 4th District Appellate\nlimited circumstances allowed IN THE APPELLATE COURT\n Court, IL\nunder Rule 23(e)(1).\n OF ILLINOIS\n\n FOURTH DISTRICT\n\n JAMAL SHEHADEH, ) Appeal from the\n Plaintiff-Appellant, ) Circuit Court of\n v. ) Sangamon County\n SANGAMON COUNTY SHERIFF, ) No. 21MR1626\n Defendant-Appellee. )\n )\n ) Honorable\n ) Christopher G. Perrin,\n ) Judge Presiding.\n\n\n JUSTICE STEIGMANN delivered the judgment of the court.\n Justices Harris and Doherty concurred in the judgment.\n\n ORDER\n\n\n ¶1 Held: The appellate court affirmed the trial court’s order granting summary\n judgment in favor of defendant.\n\n ¶2 In December 2021, plaintiff, Jamal Shehadeh, an inmate at the Christian County\n\n jail, pro se filed a complaint for declaratory judgment and injunctive relief against defendant, the\n\n Sangamon County Sheriff (Sheriff), pursuant to the Freedom of Information Act (FOIA) (5 ILCS\n\n 140/1 et seq. (West 2020)). The complaint also sought civil penalties and costs. In March 2022,\n\n the Sheriff filed a motion for summary judgment, which the trial court granted, finding the\n\n documents Shehadeh sought were exempt under section 7(1)(e-10) of the FOIA (id. § 7(1)(e-\n\n 10)).\n\n ¶3 Shehadeh appeals, arguing the trial court erred by granting summary judgment in\n\n favor of the Sheriff because the Sheriff (1) waived the section 7(1)(e-10) FOIA exemption by not\n\fclaiming that exemption in its initial FOIA response and, alternatively (2) failed to prove by clear\n\nand convincing evidence that the section 7(1)(e-10) exemption applied. We disagree and affirm\n\nthe trial court’s decision.\n\n¶4 I. BACKGROUND\n\n¶5 In December 2021, Shehadeh filed a complaint for declaratory judgment and\n\ninjunctive relief against the Sheriff pursuant to the FOIA. The complaint also sought civil\n\npenalties and costs. In his complaint, Shehadeh alleged that he sent a FOIA request to the\n\nSheriff, in which he wrote he sought “all records pertaining to Steven H. Behl. Be sure to include\n\narrest/booking photos.” Five days later, Shehadeh received a response from the Sheriff’s Office\n\ndenying his request in its entirety. Shehadeh alleged that the denial was improper because it\n\nfailed “to segregate exempt from non-exempt data under [the] FOIA § 7(1) and fail[ed] to\n\nprovide a detailed legal and factual basis for withholding [the documents] as required by §§ 9(a)\n\n[and] 9(b) [of the FOIA].”\n\n¶6 The denial, which Shehadeh attached to his complaint, contained a list of\n\nexemptions under the FOIA. Each exemption was immediately preceded by a checkbox, which\n\nthe FOIA Officer for the Sheriff would mark to indicate that the Sheriff was claiming the\n\ncorresponding exemption. In that response denying Shehadeh’s request, using that FOIA denial\n\nform, the Sheriff claimed that the documents were exempt only under section 7(d)(iv) of the\n\nFOIA (5 ILCS 140/7(1)(d)(iv) (West 2020)).\n\n¶7 In March 2022, the Sheriff filed a motion for summary judgment, arguing that\n\n(1) because Shehadeh was a prisoner who was requesting law enforcement records, the\n\nresponsive records were exempt from disclosure under section 7(1)(e-10) and (2) the Sheriff did\n\nnot waive that exemption by failing to claim the exemption in its initial response to the FOIA\n\n\n\n\n -2-\n\frequest. Attached to the motion was the affidavit of Stephanie Brown, the FOIA officer for the\n\nSheriff. Brown averred that when she reviewed Shehadeh’s request, she determined the\n\nresponsive records were exempt from disclosure under section 7(1)(e) of the FOIA because the\n\nrequester was an inmate for law enforcement records, but she inadvertently checked the wrong\n\nbox on the FOIA response form.\n\n¶8 In May 2022, Shehadeh filed a cross-motion for summary judgment, arguing,\n\namong other things, that section 7(1)(e-10) of the FOIA required the Sheriff to show by clear and\n\nconvincing evidence that “the data sought does not pertain to a potential case.” Accordingly,\n\nShehadeh argued, the Sheriff had not carried its burden because he had a related small claims\n\ncase in Christian County against Behl, the subject of the FOIA request.\n\n¶9 Later that month, the trial court conducted a hearing on the motions for summary\n\njudgment, concluded that the records sought by Shehadeh were exempt under section 7(1)(e-10)\n\nof the FOIA, and granted summary judgment in favor of the Sheriff. (We note that the record on\n\nappeal does not contain a report of proceedings.)\n\n¶ 10 This appeal followed.\n\n¶ 11 II. ANALYSIS\n\n¶ 12 Shehadeh appeals, arguing the trial court erred by granting summary judgment in\n\nfavor of the Sheriff because the Sheriff (1) waived the section 7(1)(e-10) FOIA exemption by not\n\nclaiming that exemption in its initial FOIA response and, alternatively (2) failed to prove by clear\n\nand convincing evidence that the section 7(1)(e-10) exemption applied. We disagree and affirm\n\nthe trial court’s decision.\n\n¶ 13 A. The Applicable Law and the Standard of Review\n\n¶ 14 1. Summary Judgment\n\n\n\n\n -3-\n\f¶ 15 A grant of summary judgment is appropriate when the pleadings, depositions,\n\nadmissions, and affidavits on file, when viewed in the light most favorable to the nonmoving\n\nparty, show that there is no genuine issue of material fact and that the moving party is clearly\n\nentitled to judgment as a matter of law. Chicago Sun-Times v. Cook County Health & Hospitals\n\nSystems, 2022 IL 127519, ¶ 24. “ ‘When parties file cross-motions for summary judgment, they\n\nmutually agree that there are no genuine issues of material fact and that only a question of law is\n\ninvolved.’ ” Id. Appellate courts review a trial court’s granting of summary judgment de novo.\n\nId.\n\n¶ 16 2. The FOIA\n\n¶ 17 “The General Assembly has declared [the] FOIA’s underlying public policy to be\n\nthat ‘all persons are entitled to full and complete information regarding the affairs of government\n\nand the official acts and policies of those who represent them as public officials and public\n\nemployees consistent with the terms of this Act.’ ” Green v. Chicago Police Department, 2022\n\nIL 127229, ¶ 37 (quoting 5 ILCS 140/1 (West 2018)). Accordingly, all “public records are\n\npresumed to be open and accessible.” Id. ¶ 38.\n\n¶ 18 However, the FOIA also provides that certain documents are exempt from\n\ndisclosure. Relevant to this case, section 7(1)(e-10) of the FOIA provides the following:\n\n “(1) When a request is made to inspect or copy a public record that\n\n contains information that is exempt from disclosure under this Section, but also\n\n contains information that is not exempt from disclosure, the public body may\n\n elect to redact the information that is exempt. The public body shall make the\n\n remaining information available for inspection and copying. Subject to this\n\n requirement, the following shall be exempt from inspection and copying:\n\n\n\n\n -4-\n\f ***\n\n (e-10) Law enforcement records of other persons requested by a person\n\n committed to the Department of Corrections, Department of Human Services\n\n Division of Mental Health, or a county jail, *** except as these records may be\n\n relevant to the requester’s current or potential case or claim.” (Emphasis added.) 5\n\n ILCS 140/7(1)(e-10) (West 2020).\n\n¶ 19 Regarding enforcement of the FOIA, section 11 of the FOIA provides, in part,\n\nthat “[a]ny person denied access to inspect or copy any public record by a public body may file\n\nsuit for injunctive or declaratory relief.” Id. § 11(a).\n\n¶ 20 B. This Case\n\n¶ 21 1. The Sheriff Did Not Waive the Exemption Under Section 7(1)(e-10) of the FOIA\n\n¶ 22 Shehadeh first argues that the Sheriff waived its claim to the exemption under\n\nsection 7(1)(e-10) of the FOIA because it did not claim that exemption in its denial of\n\nShehadeh’s FOIA request. Shehadeh bases his argument on the Second District’s decision in\n\nRock River Times v. Rockford Public School District 205, 2012 IL App (2d) 110879, 977 N.E.2d\n\n1216. However, that case is inapposite to the present case. Rock River Times concerned the issue\n\nof whether a public body’s raising of successive, inapplicable exemptions could support a\n\nfinding of a willful and intentional violation of the FOIA. Id. ¶¶ 51-54. Rock River Times does\n\nnot stand for the proposition that a public body is barred from asserting exemptions not claimed\n\nin its original denial of a requester’s FOIA request, as Shehadeh asserts.\n\n¶ 23 In fact, Shehadeh’s position has already been rejected multiple times. See, e.g.,\n\nHosey v. City of Joliet, 2019 IL App (3d) 180118, ¶ 12, 124 N.E.3d 1075 (holding exemptions\n\nnot referenced in a public body’s original denial letter were not waived); Chicago Tribune Co. v.\n\n\n\n\n -5-\n\fDepartment of Financial & Professional Regulation, 2014 IL App (4th) 130427, ¶ 26, 8 N.E.3d\n\n11 (holding waiver does not apply when the public body “does not maintain the number of initial\n\nclaims received against individual license holders and *** has no duty to compile information to\n\nsatisfy a FOIA request”); Kopchar v. City of Chicago, 395 Ill. App. 3d 762, 769-70, 919 N.E.2d\n\n76, 83-84 (2009) (finding, because “the FOIA mandates that the circuit court conduct\n\na de novo review” of claimed exemptions, a public body does not forfeit exemptions it does not\n\nclaim in its initial rejection to a FOIA request). We reaffirm the holdings in those cases here and\n\nconclude that, as a matter of law, a public body does not waive exemptions it failed to cite in its\n\nFOIA denial letter.\n\n¶ 24 2. The Sheriff Is Not Required To Prove the Inapplicability of the Exception\n\n¶ 25 Shehadeh next argues that even if the Sheriff did not waive the section 7(1)(e-10)\n\nexemption, the Sheriff failed to prove by clear and convincing evidence that the exemption\n\napplied. The gist of Shehadeh’s argument is that for a public body to claim the section 7(1)(e-10)\n\nexemption, it must show not only that (1) the requester was a prisoner at the time of the request\n\nand (2) the requested documents were law enforcement records, but also that (3) the exception to\n\nthe exemption does not apply—namely, the records do not relate to a current or potential case or\n\nclaim.” 5 ILCS 140/7(1)(e-10) (West 2020). The Sheriff argues that it does not need to show that\n\nthe exception does not apply because Shehadeh did not claim the exception until his motion for\n\nsummary judgment and never explained how his FOIA request was relevant to his small claims\n\ncase in Christian County against Behl. We agree with the Sheriff.\n\n¶ 26 This court recently addressed a similar issue in Donley v. City of Springfield, 2022\n\nIL App (4th) 210378. In Donley, the Springfield Police Department (Springfield) denied\n\nDonley’s FOIA request pursuant to section 7(1)(e-10) of the FOIA because Donley was a\n\n\n\n\n -6-\n\fprisoner, and the request was for law enforcement records. Id. ¶ 35. Subsequently, Donley filed a\n\ncomplaint against Springfield arguing that the denial was improper because his request was\n\nrelevant to a claim he had filed in federal court, entitling him to the exception to the section\n\n7(1)(e-10) exemption. Id. ¶ 36. However, Springfield learned of Donley’s federal case for the\n\nfirst time when it received Donley’s complaint. Id.\n\n¶ 27 Because Donley did not state in his FOIA request that the information he sought\n\nwas pertinent to a pending federal case, this court concluded that the denial was proper based on\n\nthe information reasonably known to Springfield at the time of the request. Id. That is to say,\n\nwhen Springfield denied the request, because Donley made no mention of the federal case,\n\nSpringfield had no reason to know of (1) the existence of Donley’s other case and (2) the\n\nrelevance of the documents to that case. Id. This court later explained that “[r]equiring a\n\ngovernment entity to look beyond the information provided in a FOIA request would be\n\ninefficient and expensive, especially when the burden on the requester to simply include the\n\npertinent information in his request is so minimal.” Id. ¶ 48.\n\n¶ 28 Shehadeh insists that “[a] simple check of the court’s electronic docket for the\n\ncounty in which [he] is jailed” would have revealed his small claims case against Behl. However,\n\neven if such a search could have revealed that information to the Sheriff, it had no way of\n\nknowing whether documents responsive to Shehadeh’s FOIA request were relevant to his small\n\nclaims case. Instead of requiring the Sheriff to make a “simple check of the court’s electronic\n\ndocket for the county”—which we note would be highly unlikely to alert the Sheriff to litigation\n\nin other counties—the simplest way to ensure that the Sheriff was aware of Shehadeh’s small\n\nclaims case pending in another county was for Shehadeh himself to disclose in his FOIA request\n\n(1) the existence of the other litigation and (2) the relevancy of the requested documents to that\n\n\n\n\n -7-\n\flitigation.\n\n¶ 29 Moreover, no amount of searching by the Sheriff could ever lay bare the contents\n\nof Shehadeh’s mind. We note that the language of section 7(1)(e-10) provides not only an\n\nexception to the exemption for documents relevant to a current case or claim, but also for\n\ndocuments relevant to a “potential case or claim.” (Emphasis added.) 5 ILCS 140/7(1)(e-10)\n\n(West 2020). Because section 7(1)(e-10) includes in the exception information known only to the\n\nrequester, the legislature clearly intended the requester claiming the exception to disclose to the\n\npublic body why he or she believes the exception applies. As the Sheriff aptly stated its brief: “In\n\nevery instance, it is the prisoner requester who is aware of the lawsuits in which he is a party. In\n\nevery instance, it is the prisoner requester who knows why the records he seeks may be relevant\n\n(not simply ‘related,’ as [Shehadeh] suggests) to [the] lawsuit.” Regarding this point, we reiterate\n\nwhat this court wrote in Donley:\n\n “Requiring a government entity to look beyond the information provided in a\n\n FOIA request would be inefficient and expensive, especially when the burden on\n\n the requester to simply include the pertinent information in his request is so\n\n minimal. *** Further, such a requirement would render the exemption in section\n\n 7(1)(e-10) meaningless because a prisoner’s document request always relates to\n\n some potential litigation.” Donley, 2022 IL App (4th) 210378, ¶ 48.\n\n¶ 30 Just like in Donley, here, Shehadeh withheld information from the Sheriff that\n\nwas necessary to determine whether the exception to section 7(1)(e-10) applied. Given the\n\nabsence of that information—namely, (1) the existence of that case or claim and (2) the\n\nrelevance of the requested documents to a potential or current case or claim and (see 5 ILCS\n\n140/7(1)(e-10) (West 2020))—the Sheriff had no reason to believe the exception to section\n\n\n\n\n -8-\n\f7(1)(e-10) of the FOIA applied to Shehadeh’s request. See Donley, 2022 IL App (4th) 210378,\n\n¶ 52 (“We reject Donley’s call to penalize Springfield for its failure to scour country-wide court\n\nfilings and examine each complaint, answer, and reply in a search for some nugget of litigation\n\nto support Donley’s request for law enforcement documents.”). Accordingly, the trial court\n\nproperly granted summary judgment in favor of the Sheriff.\n\n¶ 31 III. CONCLUSION\n\n¶ 32 For the reasons stated, we affirm the trial court’s judgment.\n\n¶ 33 Affirmed.\n\n\n\n\n -9-\n\f"} {"dedup_key":"2024 IL App (1st) 221414","dedup_key_type":"neutral_citation","neutral_citation":"2024 IL App (1st) 221414","case_name":"Better Government Ass’n v. City Colleges of Chicago","court_level":"Appellate","appellate_district":"1st","year":2024,"county":"Cook","appellate_docket":"1-22-1414","circuit_docket":"18-CH-09964","published":1,"authoring_justice":"Lyle","statute":["FOIA"],"exemptions_cited":["7(1)(a)"],"public_body":"City Colleges of Chicago","requesting_party":"Better Government Association","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that records requested under FOIA that are subject to FERPA protections must be produced only after the circuit court conducts an in camera inspection to redact personally identifiable information. The appellate court reversed the summary judgment in favor of the requester and remanded for the trial court to oversee these redactions.","best_text_source":"Court Opinions - FOIA/Better Government Ass’n v. City Colleges of Chicago, 2024 IL App (1st) 221414.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:53.057958","site_category":"Personnel & Student Records","date_decided":"2024-09-19","site_url":"/cases/2024%20IL%20App%20(1st)%20221414/","text_url":"/case-text/2024%20IL%20App%20(1st)%20221414.txt","full_text":" Digitally signed by\n Reporter of\n Decisions\n\n Illinois Official Reports Reason: I attest to\n the accuracy and\n integrity of this\n document\n Appellate Court Date: 2025.05.30\n 15:07:21 -05'00'\n\n\n\n Better Government Ass’n v. City Colleges of Chicago, 2024 IL App (1st) 221414\n\n\n\nAppellate Court BETTER GOVERNMENT ASSOCIATION, Plaintiff-Appellee, v.\nCaption CITY COLLEGES OF CHICAGO, Defendant-Appellant.\n\n\n\nDistrict & No. First District, Fourth Division\n No. 1-22-1414\n\n\n\nFiled September 19, 2024\n\n\n\nDecision Under Appeal from the Circuit Court of Cook County, No. 18-CH-09964; the\nReview Hon. Eve M. Reilly, Judge, presiding.\n\n\n\nJudgment Reversed and remanded with directions.\n\n\nCounsel on LaKeisha C. Marsh, Joel D. Bertocchi, and Jamel A.R. Greer, of\nAppeal Akerman LLP, of Chicago, for appellant.\n\n Matthew Topic, Josh Loevy, Merrick Wayne, and Shelley Geiszler, of\n Loevy & Loevy, of Chicago, for appellee.\n\n\n\nPanel JUSTICE LYLE delivered the judgment of the court, with opinion.\n Justices Mitchell and Mikva concurred in the judgment and opinion.\n\f OPINION\n\n¶1 Plaintiff Better Government Association (BGA) submitted a request pursuant to the\n Freedom of Information Act (FOIA) (5 ILCS 140/1 to 11.6 (West 2018)) to defendant City\n Colleges of Chicago (City Colleges) for, inter alia, education records related to City Colleges’\n graduation rate. City Colleges refused to turn over the records, asserting that the records sought\n were exempted from disclosure under section 7(1)(a) of FOIA (id. § 7(1)(a)) and pursuant to\n the Family Educational Rights and Privacy Act of 1974 (FERPA) (20 U.S.C. § 1232g (2012)).\n The circuit court disagreed and granted summary judgment in favor of BGA, finding that the\n records were not exempt from FOIA because FERPA did not “specifically prohibit” the release\n of such records, instead only conditioning the receipt of federal funding on compliance with\n the statute.\n¶2 On appeal, City Colleges contends that FERPA operates as a prohibition on the disclosure\n of the student education records sought by BGA to which the exemption in section 7(1)(a) of\n FOIA applies. City Colleges maintains that the circuit court’s “hyper-literal” reading of FOIA\n would create an absurd result that would force City Colleges to violate FERPA and therefore\n risk losing its federal funding, which is essential to the operation of its colleges. City Colleges\n maintains that to the extent we find any conflict between FOIA and FERPA, the mandates of\n FOIA must yield to the federal statute. For the reasons that follow, we reverse the judgment of\n the circuit court and remand for further proceedings.\n\n¶3 I. BACKGROUND\n¶4 This case concerns the interaction of two statutes. The first is Illinois’s FOIA statute, which\n establishes that “[a]ll records in the custody or possession of a public body are presumed to be\n open to inspection or copying.” 5 ILCS 140/1.2 (West 2018). Section 7 of FOIA provides\n exemptions to that presumption, such as when information is “specifically prohibited from\n disclosure by federal or State law or rules and regulations implementing federal or State law.”\n Id. § 7(1)(a).\n¶5 The second statute involved in this case is FERPA (20 U.S.C. § 1232g), which sets forth\n the conditions for the availability of federal funds to educational agencies or institutions. As\n relevant here, subsection (b)(1) of FERPA provides that\n “[n]o funds shall be made available under any applicable program to any educational\n agency or institution which has a policy or practice of permitting the release of\n education records (or personally identifiable information contained therein other than\n directory information, as defined in paragraph (5) of subsection (a) of this section) of\n students without the written consent of their parents to any individual, agency, or\n organization ***.” Id. § 1232g(b)(1).\n¶6 On July 9, 2018, BGA submitted a four-part FOIA request to City Colleges, seeking\n various records, statistics, documents, and data regarding City Colleges’ graduation rate in\n 2018. City Colleges, as a public body, is subject to the disclosure requirements of FOIA. 5\n ILCS 140/2(a) (West 2018); City of Champaign v. Madigan, 2013 IL App (4th) 120662, ¶ 33.\n Only part 2 of BGA’s FOIA request is at issue in this appeal. That request sought: “Data\n regarding completed course work and curriculum for each of the graduates in the cohort\n counted toward the 2018 graduation rate. This request includes, but is not necessarily limited\n\n\n -2-\n\f to, each course completed, the date of completion, credit hours earned, grade and degree.” City\n Colleges initially sought extensions to respond to the request, but thereafter failed to respond,\n prompting BGA to file this suit.\n¶7 BGA filed its complaint on August 6, 2018, to “overturn” City Colleges’ refusal to produce\n data about its graduation rate, pursuant to FOIA. In its complaint, BGA alleged that City\n Colleges willfully violated FOIA by refusing to produce the requested records. BGA sought\n an order declaring that City Colleges violated FOIA and requiring it to produce the requested\n records.\n¶8 City Colleges filed an answer and affirmative defenses to BGA’s complaint, contending\n that it had redacted and withheld certain information from the requested records pursuant to\n section 7(1)(a) of FOIA (5 ILCS 140/7(1)(a) (West 2018)) because the information was exempt\n from disclosure by federal or state law.\n¶9 At BGA’s request, City Colleges produced an index detailing each redacted or withheld\n record. City Colleges maintained that the records were redacted pursuant to FERPA and\n section 7(1)(a) of FOIA. City Colleges asserted that the redacted information included\n personally identifiable information, which could not be released without written consent from\n the students or their parents or guardians. City Colleges contended that even if it attempted to\n remove the identities of the students within the requested information, the records would still\n contain “indirect identifiers” that could be utilized to ascertain the identity of students in\n violation of FERPA.\n¶ 10 BGA filed an amended complaint alleging that City Colleges “improperly” redacted and\n withheld the requested records and then filed a motion for partial summary judgment. In its\n motion, BGA sought the release of records that it claimed would allow it to assess the accuracy\n of City Colleges’ published graduation rate data. BGA maintained that, under FOIA, City\n Colleges has the burden to prove that the withheld information was exempted by statute. BGA\n asserted that City Colleges failed to meet this burden because it cited generally to the FERPA\n statute as a whole and made only conclusory arguments that the data could be used to somehow\n indirectly identify students.\n¶ 11 BGA further contended that City Colleges failed to establish that FERPA “specifically\n prohibits” the release of the requested information, as required by section 7(1)(a) of FOIA.\n BGA acknowledged that no Illinois courts have addressed this issue but asserted that courts in\n other jurisdictions have found that FERPA merely conditions the receipt of federal funds on\n compliance with the statute but does not specifically prohibit the release of any information.\n¶ 12 In response, City Colleges contended that it sufficiently complied with BGA’s FOIA\n request while maintaining compliance with FERPA by protecting student data. City Colleges\n challenged BGA’s assertion that FERPA did not prohibit the release of students’ education\n records, asserting that the plain language of the statute operates as a prohibition by tying\n compliance to federal funding. City Colleges pointed out that the United States District Court\n for the Northern District of Illinois addressed this very issue in Marcial v. Rush University\n Medical Center, No. 16-cv-6109, 2018 WL 4144634 (N.D. Ill. Aug. 30, 2018) and found that\n FERPA prohibits educational institutions from releasing identification information in a\n student’s record without their consent.\n¶ 13 City Colleges maintained that BGA’s narrow reading of section 7(1)(a) of FOIA that a\n statute must specifically prohibit the release of information was rejected by the United States\n Court of Appeals for the Seventh Circuit in Chicago Tribune Co. v. Board of Trustees of the\n\n -3-\n\f University of Illinois, 680 F.3d 1001 (7th Cir. 2012). City Colleges contended that, under this\n precedent and the plain language of FERPA, it could release the information BGA sought\n pursuant to the FOIA request only if it obtained written consent from the parents or guardians\n (or the students themselves if they were over the age of 18) of its 8000-student graduating\n class. City Colleges asserted that such a procedure was not practical, and it was therefore forced\n to either comply with the FOIA request and risk losing its federal funding pursuant to FERPA\n or to redact or withhold the exempted records.\n¶ 14 In reply, BGA asserted that City Colleges was improperly interpreting FERPA in order to\n withhold public records. BGA contended that FERPA does not specifically prohibit disclosure\n and that City Colleges failed to adequately support its contention that the “de-identified”\n records would still contain “ ‘indirect identifiers.’ ” BGA cited to other courts’ interpretations\n of FERPA that it was a funding statute that does not prohibit the release of education records.\n See Bauer v. Kincaid, 759 F. Supp. 575, 589 (W.D. Mo. 1991); WFTV, Inc. v. School Board\n of Seminole, 874 So. 2d 48, 57 (Fla. Dist. Ct. App. 2004). BGA maintained that it was not\n seeking “personally identifiable information,” as that phrase was used in FERPA, but only\n sought “de-identified” data. BGA contended that the authority cited by City Colleges was\n inapplicable because in those cases, the party seeking the data sought personally identifiable\n information. BGA asserted that City Colleges could withhold the information if it could\n demonstrate by affidavit that a student could still be identified even if the personally\n identifiable information was redacted. BGA pointed out that City Colleges failed to submit an\n affidavit to that effect and therefore failed to meet its burden.\n¶ 15 Following a hearing, the circuit court found that there were no questions of fact. The court\n determined that the only issue was whether the exemption in section 7(1)(a) of FOIA applied.\n The court agreed with the “case law that says [FERPA] is a funding statute” that does not\n specifically prohibit the disclosure of student education data. The court noted that it prohibits\n disclosure “if you want funding. It is not the same.” The court therefore granted BGA’s motion\n for partial summary judgment with regard to part 2 of its FOIA request. The court did not\n address the issue of “de-identified” records. The court subsequently entered a stay of the\n enforcement of its ruling. Following the court’s final ruling on BGA’s other FOIA requests,\n City Colleges appealed from the circuit court’s grant of summary judgment finding that the\n education records BGA sought in part 2 of its FOIA request were not exempt from disclosure.\n We find that we have jurisdiction to consider the merits of this appeal pursuant to Illinois\n Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303(a) (eff. July 1, 2017).\n\n¶ 16 II. ANALYSIS\n¶ 17 On appeal, City Colleges contends that the circuit court erred in granting summary\n judgment in favor of BGA where FERPA operates as a prohibition on the disclosure of student\n records to which the exemption in section 7(1)(a) of FOIA applies. City Colleges maintains\n that the circuit court incorrectly adopted BGA’s “hyper-literal” interpretation of section\n 7(1)(a), finding that the exemption applies only if the statute at issue “specifically prohibits”\n the release of the requested records. City Colleges further contends that it is bound by FERPA’s\n confidentiality provisions as a matter of federal law because it has accepted federal funds.\n\n\n\n\n -4-\n\f¶ 18 A. Standard of Review\n¶ 19 Section 2-1005 of the Code of Civil Procedure governs motions for summary judgment.\n 735 ILCS 5/2-1005 (West 2018).\n “[S]ummary judgment should be granted only where the pleadings, depositions,\n admissions and affidavits on file, when viewed in the light most favorable to the\n nonmoving party, show that there is no genuine issue as to any material fact and that\n the moving party is clearly entitled to judgment as a matter of law.” (Internal quotation\n marks omitted.) International Ass’n of Fire Fighters, Local 50 v. City of Peoria, 2022\n IL 127040, ¶ 10.\n Our review of the trial court’s grant of summary judgment is de novo. Perry v. Department of\n Financial & Professional Regulation, 2018 IL 122349, ¶ 30. De novo review is also\n appropriate to the extent that this case turns on issues of statutory construction. Id.\n\n¶ 20 B. FOIA\n¶ 21 Before we may address the parties’ arguments, we must first clarify how this court\n interprets FOIA and its exemptions. The fundamental tenet of statutory interpretation is to\n ascertain and give effect to the intent of the legislature. Ryan v. Board of Trustees of the\n General Assembly Retirement System, 236 Ill. 2d 315, 319 (2010). The most reliable indicator\n of that intent is the plain language of the statute itself. Id. In this case, sections 1 and 1.2 of\n FOIA expressly declare the statute’s public policy and the legislature’s intent. Calloway v.\n Chicago Police Department, 2022 IL App (1st) 210090, ¶ 15.\n¶ 22 Section 1 provides that\n “it is declared to be the public policy of the State of Illinois that all persons are entitled\n to full and complete information regarding the affairs of government and the official\n acts and policies of those who represent them as public officials and public employees\n consistent with the terms of this Act.” 5 ILCS 140/1 (West 2018).\n That section further states that “[s]uch access is necessary to enable the people to fulfill their\n duties of discussing public issues fully and freely, making informed political judgments and\n monitoring government to ensure that it is being conducted in the public interest.” Id. Section\n 1.2 of FOIA provides that “[a]ll records in the custody or possession of a public body are\n presumed to be open to inspection or copying. Any public body that asserts that a record is\n exempt from disclosure has the burden of proving by clear and convincing evidence that it is\n exempt.” Id. § 1.2.\n¶ 23 Section 7 of FOIA provides specific exemptions from disclosure. Calloway, 2022 IL App\n (1st) 210090, ¶ 16 (“ ‘Each public body shall make available to any person for inspection or\n copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.’ ”\n (quoting 5 ILCS 140/3(a) (West 2020) and citing 5 ILCS 140/7 (West 2020))). As noted,\n section 7(1)(a) exempts from disclosure: “Information specifically prohibited from disclosure\n by federal or State law or rules and regulations implementing federal or State law.” (Emphasis\n added.) 5 ILCS 140/7(1)(a) (West 2018). In examining section 7(1)(a) of FOIA, the Second\n District of this court has observed:\n “[E]ven if a statute does not specifically provide that records are exempt from\n disclosure under [the Act] or otherwise contain an explicit prohibition against public\n disclosure, records are nevertheless exempt ‘where the plain language contained in a\n\n -5-\n\f State or federal statute reveals that public access to the records was not intended.’\n [Citation.] On the other hand, section 7(1)(a) does not apply ‘where a State or federal\n statute is ambiguous or silent in regard to the disclosure of public records.’ [Citation.]”\n Better Government Ass’n v. Zaruba, 2014 IL App (2d) 140071, ¶ 21.\n See In re Appointment of Special Prosecutor, 2017 IL App (1st) 161376, ¶ 50 (“ ‘[R]ecords\n are exempt from disclosure under [FOIA] in instances where the plain language contained in\n a state or federal statute reveals that public access to the records was not intended’ ” (quoting\n Kibort v. Westrom, 371 Ill. App. 3d 247, 256 (2007), and citing Zaruba, 2014 IL App (2d)\n 140071, ¶ 29)).\n\n¶ 24 C. FOIA, Section 7(1)(a), and FERPA\n¶ 25 With these principles in mind, the central question at issue in this appeal is whether FERPA\n “specifically prohibits,” as that phrase is used in section 7(1)(a) of FOIA, the release of the\n education records BGA sought in part 2 of its FOIA request, such that the records are exempt\n from disclosure. As the parties noted before the circuit court, no Illinois state court has\n addressed this issue. However, because FERPA is a federal statute, and many states have open\n records acts that are similar to our FOIA statute, there are a number of state and federal court\n decisions from other jurisdictions that have addressed this issue in situations comparable to the\n case at bar.\n¶ 26 City Colleges primarily relies on the United States Court of Appeals for the Sixth Circuit’s\n decision in United States v. Miami University, 294 F.3d 797 (6th Cir. 2002), in support of its\n contention that FERPA prohibits the release of education records. In Miami University, the\n editors of Miami University’s student newspaper sought student disciplinary records from the\n university to track crime trends on campus. Id. at 803 (citing State ex rel. Miami Student v.\n Miami University, 680 N.E.2d 956, 957 (Ohio 1997)). Miami University initially refused the\n request, but later released the records after the editor made a request pursuant to the Ohio\n Public Records Act (Ohio Rev. Code Ann. § 149.43 (West 2024)). Miami University, 294 F.3d\n at 803. Pursuant to FERPA, the university redacted the records, removing “the identity, sex,\n and age of the accuseds [sic], as well as the date, time and location of the incidents giving rise\n to the disciplinary charges.” (Internal quotation marks omitted.) Id. The editors, dissatisfied\n with the redactions, filed a mandamus action in the Ohio Supreme Court, seeking full\n disclosure of the records with the only redactions being the “name, social security number, or\n student I.D. number of any accused or convicted party.” (Internal quotation marks omitted.)\n Id. The Ohio Supreme Court ordered the university to release the unredacted records, holding\n that disciplinary records were not “education records” as defined in FERPA. Id.\n¶ 27 Following that decision, The Chronicle, a national weekly newspaper, made requests to\n Miami University and Ohio State University under the Ohio Public Records Act for student\n disciplinary records with minimal redactions because the records were not covered by FERPA.\n Id. at 804. The United States Department of Education informed the universities that it believed\n the Ohio Supreme Court was incorrect when it found that student disciplinary records were not\n “education records” under FERPA. Id. Both universities complied with The Chronicle’s\n request, prompting the United States to file a complaint seeking declaratory and injunctive\n relief against the universities, prohibiting the universities from releasing student disciplinary\n records that contained personally identifiable information, except as permitted under FERPA.\n\n\n -6-\n\f Id. The district court held that the student disciplinary records were education records and\n enjoined the universities from releasing the records. Id. at 805.\n¶ 28 On appeal to the Sixth Circuit, one of the issues raised was whether the district court erred\n in rejecting the Ohio Supreme Court’s holding that student disciplinary records were not\n education records, such that FERPA did not prohibit their disclosure. Id. at 810. Like Illinois’s\n FOIA, the Ohio Public Records Act contains an exemption for records “the release of which\n is prohibited by state or federal law.” (Internal quotation marks omitted.)Id. (citing Miami\n Student, 680 N.E.2d at 958, and Ohio Rev. Code Ann. § 149.43(A)(1)(v) (West 2024)). The\n Sixth Circuit observed, however, that the Ohio Supreme Court never reached the issue of\n whether FERPA prohibited the release of records. Id. Instead, the Ohio Supreme Court\n “misinterpreted” FERPA and “erroneously conclude[ed] that student disciplinary records were\n not ‘education records’ as defined by the FERPA.” Id. The Sixth Circuit declined to speculate\n about how the Ohio Supreme Court would resolve the issue of whether FERPA prohibited\n disclosure of education records. Id. Nonetheless, the Sixth Circuit noted that whether the\n release of a particular record is prohibited by federal law implicates the interpretation of federal\n law, not state law, such as the Ohio Public Records Act. Id. The court found that there was no\n conflict between the Ohio Public Records Act and FERPA because the Ohio Public Records\n Act specifically excluded from disclosure the release of records prohibited by federal law. Id.\n at 811. The court noted that despite the Ohio Supreme Court’s erroneous conclusion about\n whether the student disciplinary records were education records, the holding in that case did\n not create a conflict with FERPA because the editors sought significantly redacted records\n consistent with FERPA. Id. In contrast, The Chronicle sought virtually unredacted records\n “fraught with personally identifiable information.” Id. The court concluded that FERPA would\n not prevent The Chronicle from requesting records that had been properly redacted under\n FERPA. Id. at 824.\n¶ 29 Thus, Miami University stands for the proposition that FERPA prohibits the disclosure of\n education records unless the records are redacted to remove personally identifiable information\n as required by FERPA. City Colleges also identifies several other cases that it contends support\n its proposition that FERPA prohibits the release of education records. See, e.g., Marcial, 2018\n WL 4144634; Student Press Law Center v. Alexander, 778 F. Supp. 1227 (D.D.C. 1991);\n Belanger v. Nashua, New Hampshire, School District, 856 F. Supp. 40 (D.N.H. 1994).\n¶ 30 On the other hand, BGA primarily relies on Bauer, 759 F. Supp. 575, a case from the\n United States District Court for the Western District of Missouri, in support of its contention\n that FERPA does not specifically prohibit the release of education records. In Bauer, the\n plaintiff, a student at Southwest Missouri State University (SMSU), sought “verbatim” copies\n of incident reports related to on-campus crime from the university. Id. at 576-77. SMSU\n claimed that it was prohibited from releasing the records pursuant to FERPA. Id. at 577-78.\n The plaintiff asserted that the campus security reports were not education records under\n FERPA and that the provisions of FERPA were not “mandatory.” Id. at 581. At issue in Bauer\n was the interaction between FERPA and the Missouri Open Records Act (Mo. Ann. Stat. § 610\n et seq. (West 2004)) or the Missouri “Sunshine Law.” Bauer, 759 F. Supp. at 581. The Missouri\n Open Records Act provided that “ ‘[i]t is the public policy of this state that meetings, records,\n votes, actions and deliberations of public governmental bodies be open to the public, unless\n otherwise provided by law.’ ” Id. (quoting Mo. Ann. Stat. § 610.011 (West 2004)). The\n\n\n\n -7-\n\f Missouri Open Records Act further authorized “closure” for “ ‘Records which are protected\n from disclosure by law ***’ ” Id. at 587 (quoting Mo. Ann. Stat. § 610.021(14) (West 2004)).\n¶ 31 SMSU contended that FERPA provided “protection” for the requested records, even if it\n did not specifically “ ‘prohibit[ ]’ ” disclosure. Id. In addressing FERPA, the Bauer court stated\n that:\n “FERPA is not a law which prohibits disclosure of educational records. It is a\n provision which imposes a penalty for the disclosure of educational records. [Student\n Bar Ass’n Board of Governors v. Byrd, 239 S.E.2d 415 (N.C. 1977),] stated that the\n Buckley amendment (FERPA) does not forbid disclosure of information concerning a\n student. FERPA provides for the withholding of federal funds otherwise available to\n an educational institution which has a policy or practice of permitting the release of\n educational records.” Id. at 589.\n The court continued that “FERPA protects as confidential, information which a student is\n required to produce or divulge in conjunction with application and attendance at an educational\n institution. FERPA also protects academic data generated while an individual is a student at an\n educational institution.” Id. at 590. The court found, however, that the criminal investigation\n and incident reports that the plaintiff sought were not the type of records that FERPA expressly\n protects. Id.\n “Criminal investigation reports are specifically excluded from the educational\n records which FERPA protects. Criminal investigation and incident reports do not\n contain the same type of information which a student is required to submit as a\n precondition to enrollment or attendance, nor is this type of information created in the\n natural course of an individual’s status as a student.\n The fact that the statute specifically exempts records maintained for law\n enforcement purposes demonstrates that Congress did not intend to treat criminal\n investigation and incident reports as educational records. The underlying purpose of\n FERPA was not to grant individual students a right to privacy or access to educational\n records, but to stem the growing policy of many institutions to carelessly release\n educational information.” Id.\n¶ 32 Like City Colleges, BGA also identifies a number of other cases that it maintains supports\n its position. See, e.g., WFTV, 874 So. 2d at 57; University of Kentucky v. Kernel Press, Inc.,\n 620 S.W.3d 43, 56-57 (Ky. 2021); Doe v. Rutgers, 245 A.3d 261 (N.J. Super. Ct. App. Div.\n 2021).\n¶ 33 As a result of these seemingly disparate decision, some courts have observed that there is\n no consensus on whether FERPA “prohibits” the release of education records. In Press-Citizen\n Co. v. University of Iowa, 817 N.W.2d 480, 486 (Iowa 2012), the Iowa Supreme Court noted\n the jurisdictional divide on this issue when examining the interplay between FERPA’s and the\n state’s open records act. The court listed Bauer, WFTV, and Kirwan v. The Diamondback, 721\n A.2d 196, 206 (Md. 1998), as cases that found FERPA did not prohibit the disclosure of\n education records. Press-Citizen, 817 N.W.2d at 486-87. On the other hand, the court identified\n Miami University, Sherry v. Radnor Township School District, 20 A.3d 515, 525 (Pa. Commw.\n Ct. 2011), and Rim of the World Unified School District v. Superior Court of San Bernardino\n County, 129 Cal. Rptr. 2d 11, 15 (Ct. App. 2002), as cases that held that FERPA prohibited the\n disclosure of education records. Press-Citizen, 817 N.W.2d at 487. The Iowa Supreme Court\n determined, however, that it did not need to address the controversy because the Iowa Open\n\n -8-\n\f Records Act (Iowa Code § 22.1 et seq. (2024)) already gave priority to FERPA. Press-Citizen,\n 817 N.W.2d at 487. The court noted that the Iowa Open Records Act provided an exception\n for a provision that would cause a denial of federal funds to a state agency. Id. at 487-88.\n¶ 34 Press-Citizen is not the only case to wade into the interaction between FERPA and a state\n open records act or FOIA-equivalent statute, note the numerous conflicting decisions, and then\n resolve the issue based on an exception in the state’s open records act. In Caledonian-Record\n Publishing Co. v. Vermont State College, 2003 VT 78, ¶ 1, 175 Vt. 438, 833 A.2d 1273, a\n newspaper sought access to student disciplinary records at the defendant universities. The\n Vermont Open Meeting Law (Vt. Stat. Ann. tit. 1, § 311 (West 1980)) and Public Records Act\n (Vt. Stat. Ann. tit. 1, § 315 (West 2017)) exempted from disclosure records and proceedings\n “ ‘made confidential by the laws of the United States.’ ” Caledonian-Record Publishing Co.,\n 2003 VT 78, ¶ 7, 175 Vt. 438, 833 A.2d 1273 (quoting Vt. Stat. Ann. tit. 1, § 312(e) (West\n 2016)). The Vermont Supreme Court noted that “state and federal courts are sharply divided”\n on the issue of whether FERPA makes education records exempt from disclosure. Id.\n (collecting cases). The Vermont Supreme Court found it “unnecessary” to resolve this division,\n however, because the Vermont Public Records Act had an express exception for “student\n records.” Id. ¶ 9.\n¶ 35 Illinois’s FOIA does not contain exemptions that are similar to the exclusions found\n dispositive in Press-Citizen and Caledonian-Record. Nonetheless, we find that the exemption\n in section 7(1)(a) of FOIA operates to exempt the requested records from disclosure in this\n case. A review of the precedent cited above demonstrates that even authority that BGA and\n other courts claim have found that FERPA does not “specifically prohibit” the release of\n education records have nonetheless recognized that FERPA was intended to protect these\n records—specifically, records that contain personally identifiable information. For instance, in\n Bauer, despite stating that FERPA did not “prohibit[ ]” or “forbid” the disclosure of education\n records, the court nonetheless observed that FERPA was intended to “protect[ ]” certain\n student education records, such as “academic data generated while an individual is a student\n at an educational institution.” Bauer, 759 F. Supp. at 589-90. Similarly, in WFTV, although the\n court stated that “FERPA does not prohibit the disclosure of any educational records,” it\n recognized that FERPA does “prohibit[ ] the disclosure of any personally identifiable\n information in education records.” (Emphasis in original.) WFTV, 874 So. 2d at 57. The WFTV\n court stated twice more that FERPA “prohibits” and “protect[s]” the release of personally\n identifiable information contained in education records. Id. at 57-58.\n¶ 36 In Kirwan, the court stated that FERPA “was not intended to preclude the release of any\n record simply because the record contained the name of a student. The federal statute was\n obviously intended to keep private those aspects of a student’s educational life that relate to\n academic matters or status as a student.” (Emphasis added.) Kirwan, 721 A.2d at 204. 1 In\n Kernel Press, despite noting that FERPA was a “funding statute,” the court nevertheless stated\n that “FERPA aims to protect the privacy of student education records and to prohibit\n educational institutions from disclosing personally identifiable information in those records.”\n\n 1\n We note that the court in Kirwan found that the records at issue were not “education records”\n under FERPA and therefore declined to address the issue of whether FERPA “directly prohibit[ed]”\n the disclosure of protected education records where the only “enforcement mechanism” was the\n withholding of funds. Kirwan, 721 A.2d at 206.\n\n -9-\n\f (Emphases added.) Kerneal Press, 620 S.W.3d at 56, 58. Finally, in Doe, the issue was whether\n the plaintiff could access his own education records. Doe, 245 A.3d at 268. The court found\n that this type of disclosure was not prohibited under FERPA; however, it recognized the\n defendant university’s responsibility to protect the personally identifiable information of its\n other students in releasing the requested records to the plaintiff. Id. at 268-70 (“[W]e are fully\n cognizant of defendants’ need to maintain and implement system-wide protocols under FERPA\n to safeguard confidentiality of its students’ records.” (Emphases added.)).\n¶ 37 Thus, these decisions seem to simultaneously hold that FERPA both does and does not\n prohibit the release of education records. However, such an interpretation misses a key\n distinction; a distinction that was overlooked by both the circuit court in this case and BGA.\n The focus is not on the education records themselves, but the information contained in those\n education records. FERPA does not prohibit the release of all education records in all\n circumstances. However, it does prohibit the release of personally identifiable information in\n education records without the consent of the students or their guardians. See Marcial, 2018\n WL 4144634, at *5 (“FERPA prohibits educational institutions from releasing identification\n information in a student’s record without their written consent.” (Emphasis added.)); Sherry,\n 20 A.3d at 525 (“FERPA precludes the release of ‘personally identifiable information’ ***.”\n (Emphasis added.)). Whether we choose to use the language of the Kirwan court of “keep\n private,” the language of the Bauer court of “protect,” or the language of the Doe court to\n “safeguard,” it is clear that, under FERPA and FOIA, public access to education records that\n contain personally identifiable information of a student “was not intended.” (Internal quotation\n marks omitted.) Zaruba, 2014 IL App (2d) 140071, ¶ 21; In re Appointment of Special\n Prosecutor, 2017 IL App (1st) 161376, ¶ 50.\n¶ 38 Based on this precedent, the circuit court’s ruling here that a complete loss of federal\n funding for institutions that violate FERPA does not amount to a “specific prohibition” under\n section 7(1)(a) of FOIA is unreasonable. The court’s implication that City Colleges could\n simply choose to comply with the FOIA request, violate FERPA, and forgo its federal funding\n is “unrealistic and disingenuous.” Student Press, 778 F. Supp. at 1232 n.13. City Colleges\n depends on federal funding to maintain its operations, receiving approximately 32%—almost\n $90 million—of its total revenue in the 2018 fiscal year from federal funds. FERPA provides\n that educational institutions that accept federal funding will lose that funding if they violate\n FERPA’s privacy requirements. 20 U.S.C. § 1232g(a)(3). “FERPA imposes a binding\n obligation on schools that accept federal funds.” (Emphasis added.) Miami University, 294\n F.3d at 809 n.11. “Once the conditions and the funds are accepted, the school is indeed\n prohibited from systematically releasing education records without consent.” Id. at 809; see\n Chicago Tribune Co., 680 F.3d at 1004 (“The most one can say about [FERPA] is that, if a\n state takes the money, then it must honor the conditions of the grant, including nondisclosure.”\n (Emphases in original.)); Owasso Independent School District, No. I-011 v. Falvo, 534 U.S.\n 426, 428 (2002) (“Under FERPA, schools and educational agencies receiving federal financial\n assistance must comply with certain conditions. [Citation.] One condition specified in\n [FERPA] is that sensitive information about students may not be released without parental\n consent.”). City Colleges, having accepted federal funding, was therefore prohibited from\n releasing students’ personally identifiable information without consent.\n¶ 39 The Ohio Supreme Court reached the same conclusion in State ex rel. ESPN, Inc. v. Ohio\n State University, 132 Ohio St. 3d 212, 2012-Ohio-2690, 970 N.E.2d 939 (per curiam), when\n\n\n - 10 -\n\f examining FERPA’s privacy mandates in the context of a disclosure exemption in the Ohio\n Public Records Act that was similar to the exemption in section 7(1)(a) of FOIA. In that case,\n ESPN, Inc. (ESPN), sought records from the Ohio State University (Ohio State) under the\n state’s Public Records Act. Id. ¶ 1. Ohio State maintained that certain records were exempt\n from disclosure under FERPA because the state’s Public Records Act exempted from the\n definition of “public record” records “ ‘ “the release of which is prohibited by state or federal\n law.” ’ ” Id. ¶ 16 (quoting State ex rel. Dawson v. Bloom-Carroll Local School District, 131\n Ohio St. 3d 10, 2011-Ohio-6009, 959 N.E.2d 524, ¶ 27, quoting Ohio Rev. Code Ann.\n § 149.43(A)(1)(v) (West 2024)). ESPN argued that FERPA did not prohibit the disclosure of\n the requested records, but merely penalized educational institutions that released the records\n by withholding federal funding. Id. ¶ 20. In a per curiam decision, the Ohio Supreme Court\n rejected this argument, finding that Ohio State was bound by FERPA’s terms because it had\n accepted federal funding. Id. ¶ 23. “Therefore, Ohio State, having agreed to the conditions and\n accepted the federal funds, was prohibited by FERPA from systematically releasing education\n records without parental consent.” (Emphasis added.) Id. “FERPA *** does constitute a\n prohibition on the release of records under” the exemption in section 149.43(A)(1)(v) of the\n Ohio Public Records Act (Ohio Rev. Ann. § 149.43(A)(1)(v) (West 2024)). ESPN, 2012-Ohio-\n 2690, ¶ 25. The court found that Ohio State could provide ESPN access to these records after\n they were redacted to comply with FERPA. Id. ¶ 34-35.\n¶ 40 In the case at bar, the circuit court’s summary judgment order required City Colleges to\n release education records in response to part 2 of BGA’s FOIA request. This request sought\n “[d]ata regarding completed course work and curriculum for each of the graduates in the cohort\n counted toward the 2018 graduation rate. This request includes, but is not necessarily limited\n to, each course completed, the date of completion, credit hours earned, grade and degree.” The\n court’s order did not contemplate any redaction of the records, despite City Colleges’\n assertions that the records contained FERPA-protected information. The court did not review\n the records in camera to determine whether redaction was necessary or how the records could\n be redacted to remove personally identifiable information. “Redaction of FERPA-protected\n education records is commonplace.” Kernel Press, 620 S.W.3d at 57. In order to ensure the\n redactions would protect the privacy interests involved, it is proper for the circuit court to\n conduct an in camera inspection of the records. Krakauer v. State, 2016 MT 230, ¶ 39, 384\n Mont. 527, 381 P.3d 524. The circuit court’s holding here, made without reviewing the records\n and ordering redactions to comply with FERPA and FOIA, must therefore be reversed where\n there was no assurance that the records did not contain personally identifiable student\n information. Accordingly, we find that under section 7(1)(a) of FOIA, the disclosure of the\n requested unredacted records was not intended by FERPA and that the circuit court erred in\n granting summary judgment in favor of BGA.\n\n¶ 41 D. Redaction of Personally Identifiable Information\n¶ 42 This finding does not end our inquiry, however. BGA contends, as an alternative grounds\n for affirmance, that it is seeking only “de-identified” records, which are not protected by\n FERPA. Indeed, the regulations adopted by the United States Department of Education to\n implement FERPA specifically provide that an educational agency or institution may disclose\n education records without consent “after the removal of all personally identifiable information\n provided that the educational agency or institution or other party has made a reasonable\n\n\n - 11 -\n\f determination that a student’s identity is not personally identifiable, whether through single or\n multiple releases, and taking into account other reasonably available information.” 34 C.F.R.\n § 99.31(b)(1) (2011). However, we find that may not affirm the circuit court’s judgment on\n this alternative argument that was not addressed by the circuit court. Although it is true that\n we may affirm the judgment of the circuit court on any basis appearing in the record, regardless\n of whether the circuit court relied on that ground (Jim Mullen Charitable Foundation v. World\n Ability Federation, NFP, 395 Ill. App. 3d 746, 759 (2009)), it is not clear, based on the record\n before us, what personally identifiable information is present in the requested records, whether\n the records can be redacted in a manner to satisfy FERPA and FOIA, and whether the redacted\n records would be responsive to BGA’s FOIA request. These are factual questions to be\n resolved by the circuit court. See Nokomis Quarry Co. v. Dietl, 333 Ill. App. 3d 480, 483\n (2002).\n¶ 43 We therefore find that remand to the circuit court is warranted. On remand, the circuit court\n should review the materials responsive to part 2 of BGA’s FOIA request and redact or\n otherwise separate any portion of the education records that might contain information that\n constitutes “personally identifiable information” protected by FERPA. See Unincorporated\n Operating Division of Indiana Newspapers, Inc. v. Trustees of Indiana University, 787 N.E.2d\n 893, 909 (Ind. Ct. App. 2003). The Department of Education’s regulations define “personally\n identifiable information” as follows:\n “The term includes, but is not limited to—\n (a) The student’s name;\n (b) The name of the student’s parent or other family members;\n (c) The address of the student or student’s family;\n (d) A personal identifier, such as the student’s social security number, student\n number, or biometric record;\n (e) Other indirect identifiers, such as the student’s date of birth, place of birth, and\n mother’s maiden name;\n (f) Other information that, alone or in combination, is linked or linkable to a specific\n student that would allow a reasonable person in the school community, who does not\n have personal knowledge of the relevant circumstances, to identify the student with\n reasonable certainty; or\n (g) Information requested by a person who the educational agency or institution\n reasonably believes knows the identity of the student to whom the education record\n relates.” 34 C.F.R. § 99.3 (2011).\n Through this redaction, BGA would have access to the information it seeks pursuant to\n FOIA—albeit limited by redaction—and City Colleges would protect the privacy of student\n information in accordance with FERPA. Unincorporated Operating, 787 N.E.2d at 909. In\n making these redactions, the circuit court must make factual determinations regarding whether\n the redactions are sufficient to satisfy the regulations. “We nonetheless emphasize that any\n information which could lead to the identity of former or present students of [City Colleges]\n must be redacted. Whether or not this limits the intelligibility of the documents, this is what is\n required by [FOIA] and FERPA.” (Emphasis in original.) Id.\n\n\n\n\n - 12 -\n\f¶ 44 III. CONCLUSION\n¶ 45 For the reasons stated, we reverse the judgment of the circuit court granting summary\n judgment in favor of BGA on part 2 of its FOIA request and remand to the circuit court to\n conduct an in camera inspection of the records and oversee the redactions to remove any\n personally identifiable information from the requested education records.\n\n¶ 46 Reversed and remanded with directions.\n\n\n\n\n - 13 -\n\f"} {"dedup_key":"2024 IL App (1st) 230139","dedup_key_type":"neutral_citation","neutral_citation":"2024 IL App (1st) 230139","case_name":"Eberhardt v. Village of Tinley Park","court_level":"Appellate","appellate_district":"1st","year":2024,"county":"Cook","appellate_docket":"1-23-0139","circuit_docket":"21-L-65042","published":1,"authoring_justice":"Lampkin","statute":["OMA"],"exemptions_cited":[],"public_body":"Village of Tinley Park","requesting_party":"Stephen Eberhardt","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court addressed whether a violation of the Open Meetings Act could render a municipal contract void ab initio. The court held that subsequent ratification of the board's actions in properly noticed public meetings cured the alleged OMA violation, rendering the contract enforceable.","best_text_source":"Court Opinions - FOIA/Eberhardt v. Village of Tinley Park, 2024 IL App (1st) 230139.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:53.058032","site_category":"Meeting Conduct & Participation","date_decided":"2024-04-24","site_url":"/cases/2024%20IL%20App%20(1st)%20230139/","text_url":"/case-text/2024%20IL%20App%20(1st)%20230139.txt","full_text":" Digitally signed by\n Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2025.03.06\n 10:34:38 -06'00'\n\n\n\n Eberhardt v. Village of Tinley Park, 2024 IL App (1st) 230139\n\n\n\nAppellate Court STEPHEN EBERHARDT, Plaintiff-Appellant, v. THE VILLAGE OF\nCaption TINLEY PARK, MICHAEL GLOTZ, KRISTIN THIRION,\n WILLIAM BRADY, WILLIAM BRENNAN, MICHAEL\n MUELLER, DAVID NIEMEYER, PATRICK CARR JR., and\n PATRICK WALSH, Defendants-Appellees.\n\n\n\nDistrict & No. First District, Third Division\n No. 1-23-0139\n\n\n\nFiled April 24, 2024\nRehearing denied May 14, 2024\n\n\n\nDecision Under Appeal from the Circuit Court of Cook County, No. 21-L-65042; the\nReview Hon. Mary Kathleen McHugh, Judge, presiding.\n\n\n\nJudgment Affirmed.\n\n\n Dominick L. Lanzito, of Peterson, Johnson & Murray, LLC, of\nCounsel on\n Chicago, for appellees Village of Tinley Park, Michael W. Glotz,\nAppeal Kristin A. Thirion, William Brady, William Brennan, Michael\n Mueller, David Niemeyer, and Patrick Carr Jr.\n\n Patrick M. Griffin, of Griffin Williams McMahon & Walsh, LLP, of\n Geneva, for other appellee.\n\f Panel JUSTICE LAMPKIN delivered the judgment of the court, with\n opinion.\n Justices D.B. Walker and Van Tine concurred in the judgment and\n opinion.\n\n\n OPINION\n\n¶1 Plaintiff Stephen Eberhardt, an attorney representing himself pro se, 1 filed a lawsuit\n against the Village of Tinley Park (Village), several of its officials and employees, and its\n outside counsel. Plaintiff alleged that defendants (1) violated the Illinois Constitution by\n enacting an ordinance that required public comments of special Village board meetings to be\n germane to agenda items, (2) are liable under section 1983 of the federal Civil Rights Act (42\n U.S.C. § 1983 (2018)) for violating his federal free speech and due process rights by requesting\n an investigation of plaintiff with the Illinois Attorney and Registration Commission (ARDC),\n and (3) unlawfully appointed outside counsel as their representative. The trial court granted,\n with prejudice, the defendants’ motions to dismiss plaintiff’s complaint pursuant to section 2-\n 619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2020)).\n¶2 On appeal, plaintiff argues that the circuit court erred in granting the defendants’ motions\n to dismiss with prejudice because he alleged sufficient facts to set out the essential elements\n of his alleged causes of action and no affirmative defense or other matter defeated his claims.\n¶3 For the reasons that follow, we affirm the judgment of the circuit court. 2\n\n¶4 I. BACKGROUND\n¶5 The operative pleading here is plaintiff’s second amended complaint, filed April 13, 2022,\n wherein plaintiff alleged that at all relevant times he was a resident and taxpayer of the Village,\n a self-employed attorney with offices in the Village, and a well-recognized local voice\n speaking often at Village meetings in support of open and honest government and against\n government secrecy and corruption. He sued the Village; Michael Glotz, a former Village\n trustee and mayor, in his individual capacity; Kristin Thirion, a former Village clerk and\n executive administrative assistant, in her individual capacity; William Brady, a Village trustee,\n in his individual capacity; William Brennan, a Village trustee, in his individual capacity;\n Michael Mueller, a Village trustee, in his individual capacity; David Niemeyer, a former\n Village manager, in his individual capacity; Patrick Carr Jr., a former Village assistant\n manager, 911 coordinator, and Village manager, in his individual capacity (collectively, the\n Village defendants); and Patrick Walsh, individually and in his capacity as the agent and\n president of the Walsh Law Group, P.C. The Village defendants and defendant Walsh have\n separate counsel.\n\n\n\n 1\n According to the records of the Illinois Attorney Registration and Disciplinary Commission,\n plaintiff has retired and is not authorized to practice law. His last registered year was 2024.\n 2\n In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this\n appeal has been resolved without oral argument upon the entry of a separate written order.\n\n -2-\n\f¶6 In his second amended complaint, 3 plaintiff alleged that the Village defendants executed\n their plan to take control of the Village board after the April 2019 election by silencing critical\n speech during the public comment portion of Village meetings; using social media to spread\n false information, post derogatory comments, and bully and harass people to deter them from\n speaking at Village meetings; blocking plaintiff and others from commenting on the Village\n defendants’ social media pages; engaging in retaliatory actions for critical comments; erasing\n electronic messages that were potentially public records; and using taxpayer funds to support\n the Village defendants’ political and personal interests. Plaintiff also alleged that the Village\n defendants appointed defendant Walsh as their counsel to assist them in their unlawful actions,\n including refusing proper requests to produce public records, in violation of the Freedom of\n Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2020)), fabricating and enforcing\n restrictive rules for public comment, in violation of the Open Meetings Act (5 ILCS 120/1\n et seq. (West 2020)), and interfering with plaintiff’s actions regarding FOIA matters and\n litigation and his clients’ access to the courts.\n¶7 Specifically, plaintiff alleged that when the Village defendants, in December 2019, enacted\n ordinance No. 2019-O-077, which required public comments at special Village board\n meetings, special commission, or special committee meetings to be germane to items on that\n particular special meeting agenda, they imposed content-based restrictions on public\n comments that violated the Open Meetings Act and the free speech and peaceful assembly\n rights of plaintiff and others under the Illinois Constitution (Ill. Const. 1970, art. I, §§ 4-5). See\n Tinley Park Ordinance No. 2019-O-077 (approved Dec. 3, 2019) (codified at Tinley Park Code\n of Ordinances § 43.01). Plaintiff alleged that it was part of defendants’ plan to thereafter\n unlawfully reschedule regular meetings as special meetings to trigger the use of the\n unconstitutional content-based restrictive rules on public comment.\n¶8 Plaintiff also alleged that defendant Niemeyer, without authority but acting under color of\n law, filed with the ARDC a request for an investigation against plaintiff, which contained\n intentional and knowing false facts and misrepresentations. According to plaintiff, this\n investigation request was intended to harass him, retaliate against him for suing defendants in\n federal court, and interfere with and suppress his freedom of speech, which was critical of\n defendants’ conduct or fitness for office. Plaintiff alleged that defendant Walsh drafted the\n request for investigation and defendant Carr submitted a reply to the ARDC. Plaintiff alleged\n that the then-mayor neither authorized the filing of the request for investigation nor was\n consulted about it.\n¶9 Furthermore, plaintiff alleged that the Village defendants, without authority, appointed\n defendant Walsh to represent the Village and its officials and employees as their attorney and\n thereby obligated the taxpayers to pay for defendants’ personal and professional attacks on\n plaintiff and not for any proper purpose of the Village. Plaintiff alleged that the then-mayor\n did not sign the resolution appointing Walsh as an attorney for the Village.\n\n\n 3\n Although this operative pleading is entitled as plaintiff’s second amended complaint, it is actually\n his corrected second amended complaint. This complaint’s title caused some confusion regarding the\n Village defendants filing their responsive motion to dismiss to the correct complaint. The Village\n defendants, however, informed the trial court during argument that plaintiff’s two most recent\n complaints were substantially the same (except for the facts upon which plaintiff’s section 1983 civil\n rights claim was predicated) and the Village defendants’ arguments as to both pleadings were the same.\n\n -3-\n\f¶ 10 Plaintiff sought the following relief: (1) as against the Village, a declaration that ordinance\n No. 2019-O-077, which restricted speech at special Village board meetings, violated the Open\n Meetings Act and was unconstitutional facially and as applied under the rights guaranteed by\n the Illinois Constitution, and an injunction against the enforcement of this ordinance (count I);\n (2) as against all the individual defendants, damages under the guarantees of section 1983 of\n the Civil Rights Act for alleged violations of plaintiff’s free speech rights under the first\n amendment and due process and equal protection rights under the fourteenth amendment of\n the United States Constitution (U.S. Const., amends. I, XIV) based on defendants’ ARDC\n investigation request (count II), and (3) as against the Village, Glotz, Thirion, Brady, Brennan,\n Mueller, and Walsh, declaratory and injunctive relief for their alleged unlawful appointment\n of defendant Walsh as their attorney and an order for Walsh to reimburse the Village for any\n taxpayer funds paid to him or his law firm (count III).\n¶ 11 The Village defendants moved under section 2-619.1 of the Code to dismiss plaintiff’s\n second amended complaint. In their motion and supporting pleadings, they argued that\n (1) plaintiff’s complaint was “lengthy, incoherent, protracted and chock full of superfluous\n statements, inuendo and conclusory allegations,” in violation of section 2-603(a) of the Code\n (735 ILCS 5/2-603(a) (West 2020)), (2) res judicata barred counts I and II to the extent\n plaintiff sought to resurrect his first amendment and fourteenth amendment equal protection\n and due process claims, which had already been litigated in federal court, 4 (3) plaintiff pled\n multiple causes of action in single counts, in violation of section 2-603(b) of the Code (id. § 2-\n 603(b)), (4) plaintiff failed to plead taxpayer standing regarding his count III claim, and\n (5) defendants were immune from liability.\n¶ 12 In response, plaintiff moved to strike the motion to dismiss, arguing, inter alia, that it was\n full of improper and undeveloped arguments, his claims withstood section 2-603 scrutiny, the\n equitable doctrine of res judicata should be relaxed in the interest of justice and did not apply\n to his constitutional claims predicated on the Illinois Constitution, and the Village defendants\n failed to support their immunity claims with affidavits regarding their acts being within the\n scope of their employment as Village officials and employees.\n¶ 13 Meanwhile, defendant Walsh also moved under section 2-619.1 of the Code to dismiss\n counts II and III of plaintiff’s second amended complaint, arguing that (1) plaintiff, who was\n not a current taxpayer in the community and never owned any property in the Village, lacked\n standing to bring his taxpayer lawsuit, (2) there was no basis for individual liability against\n defendant Walsh because the Village engaged the Walsh Law Group, P.C., and not defendant\n Walsh individually, (3) FOIA did not provide for a private right of action against an individual,\n (4) purported violations of state law do not infringe upon the United States Constitution as pled\n by plaintiff, (5) Illinois Supreme Court Rule 775 (eff. Dec. 7, 2011) provides absolute\n immunity to defendant Walsh for drafting a request for investigation to the ARDC, (6) plaintiff\n failed to adhere to the formal pleading requirements under section 2-603 of the Code, and\n\n\n 4\n In Eberhardt v. Village of Tinley Park, No. 1:20-cv-01171 (N.D. Ill. Sept. 2, 2021), the court\n dismissed with prejudice plaintiff’s federal constitutional claims for lack of standing and jurisdiction\n and dismissed without prejudice plaintiff’s remaining state law claims. The federal case was filed\n against all the defendants in the case before this court except for defendants Brennan, Mueller, and\n Carr. The federal case also included five other individuals who are not defendants in the case before\n this court.\n\n -4-\n\f (7) the appointment of the Walsh Law Group, P.C., complied with the Village code, pursuant\n to the Village’s purchasing ordinance, and that appointment was later ratified by the full board\n of trustees. Walsh attached as exhibits to his motion Village public records, including a\n resolution and purchasing ordinance.\n¶ 14 Plaintiff moved to strike defendant Walsh’s motion and supporting pleadings, arguing,\n inter alia, that (1) plaintiff had standing to sue as a taxpayer because he had paid his wife’s\n property taxes, (2) taxpayer standing was irrelevant to his section 1983 claim, (3) he had\n taxpayer standing to challenge the hiring of Walsh because plaintiff had paid phone bill\n communications taxes and the funds he paid for the water bill, vehicle sticker tax, sales tax,\n motor fuel tax, and income tax were forwarded to the general fund of the Village, (4) the\n Village’s purchasing ordinance was superseded by the time of the appointment of defendant\n Walsh’s law firm in July 2019, (5) Walsh did not submit any affidavit stating that he was\n immune based on communications with the ARDC, (6) Walsh did not submit any affidavit\n compliant with Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013) and section 2-619 of the\n Code, swearing to the truth of the alleged facts he argued, (7) Walsh’s exhibits on the standing\n issue violated Illinois Supreme Court Rule 138 (eff. Jan. 1, 2018) by putting plaintiff’s personal\n identity information on the public portal, and (8) Rule 775 did not immunize defendants’\n unconstitutional actions.\n¶ 15 After briefing and oral argument, the trial court, on January 6, 2023, granted defendants’\n motions to dismiss with prejudice. The written dismissal order indicated that the trial court\n stated its reasons for the dismissal on the record; however, no court reporter was present for\n the January 6, 2023, court date. The court also denied plaintiff’s motions to strike. Plaintiff\n timely appealed.\n\n¶ 16 II. ANALYSIS\n¶ 17 Defendants moved to dismiss plaintiff’s complaint pursuant to section 2-619.1 of the Code\n (735 ILCS 5/2-619.1 (West 2020)). Section 2-619.1 provides that motions with respect to\n pleadings pursuant to sections 2-615 and 2-619 of the Code (id. §§ 2-615, 2-619) may be filed\n together as a single motion. Id. § 2-619.1; Edelman, Combs & Latturner v. Hinshaw &\n Culbertson, 338 Ill. App. 3d 156, 164 (2003).\n¶ 18 A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based on\n defects apparent on its face. 735 ILCS 5/2-615 (West 2020); Marshall v. Burger King Corp.,\n 222 Ill. 2d 422, 429 (2006). In ruling on a section 2-615 motion to dismiss, all well-pleaded\n facts and all reasonable inferences that may be drawn from those facts are accepted as true.\n Rockford Memorial Hospital v. Havrilesko, 368 Ill. App. 3d 115, 120 (2006). However, a\n plaintiff may not rely on mere conclusions of law or fact unsupported by specific factual\n allegations. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009). The\n critical inquiry is whether the allegations of the complaint are sufficient to establish a cause of\n action under which relief may be granted. Malinksi v. Grayslake Community High School\n District 127, 2014 IL App (2d) 130685, ¶ 6. Thus, only those facts apparent from the face of\n the pleadings, documents attached to a complaint (including exhibits, depositions, and\n affidavits), matters of which the court can take judicial notice, and judicial admissions in the\n record may be considered in ruling on a section 2-615 motion. Bruss v. Przybylo, 385 Ill. App.\n 3d 399, 405 (2008). A court may also consider documents attached to a motion to dismiss\n where the plaintiff put their contents at issue but failed to attach them to the complaint. See\n\n -5-\n\f Perkaus v. Chicago Catholic High School Athletic League, 140 Ill. App. 3d 127, 134 (1986).\n Where allegations made in the body of the complaint conflict with facts disclosed in the\n exhibits, the exhibits control and the allegations will not be taken as true in evaluating the\n sufficiency of the complaint. Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414, 430-\n 31 (2004).\n¶ 19 In contrast, a motion to dismiss based on section 2-619 of the Code (735 ILCS 5/2-619\n (West 2020)) admits the legal sufficiency of the complaint but raises defects, defenses, or other\n affirmative matter, appearing on the face of the complaint or established by external\n submissions, that defeat the claim. Orlak v. Loyola University Health System, 228 Ill. 2d 1, 6-\n 7 (2007). An “affirmative matter” for the purposes of a section 2-619 motion is something in\n the nature of a defense that negates the cause of action completely or refutes crucial\n conclusions of law or conclusions of material fact contained in or inferred from the complaint.\n Cwikla v. Sheir, 345 Ill. App. 3d 23, 29 (2003). The purpose of section 2-619 is to afford\n litigants a means to dispose of issues of law and easily proven issues of fact at the outset of\n litigation. Brummel v. Grossman, 2018 IL App (1st) 162540, ¶ 22.\n¶ 20 In considering a combined motion to dismiss pursuant to section 2-619.1, we accept all\n well-pleaded facts in the complaint as true, drawing all reasonable inferences from these facts\n in favor of the nonmoving party. Marshall, 222 Ill. 2d at 429. Our review under either section\n 2-615 or section 2-619 of the Code is de novo. Hadley v. Doe, 2015 IL 118000, ¶ 29. Further,\n we may affirm the trial court’s judgment on any basis in the record, regardless of the court’s\n reasoning. O’Callaghan v. Satherlie, 2015 IL App (1st) 142152, ¶ 17.\n\n¶ 21 A. Free Speech and Village Ordinance No. 2019-O-077\n¶ 22 Plaintiff argues that when the Village enacted ordinance No. 2019-O-077, which required\n public comments at special Village board meetings to be germane to items on the agenda, the\n Village imposed content-based restrictions on public comments that violated the Open\n Meetings Act 5 and the free speech and peaceful assembly rights of plaintiff and others under\n the Illinois Constitution. Plaintiff sought a declaration against the Village that ordinance No.\n 2019-O-077 violated the Open Meetings Act and was unconstitutional facially and as applied\n to him and others under the Illinois Constitution. Plaintiff alleged the ordinance was facially\n unconstitutional because it was content based, was not reasonably necessary to protect a\n significant government interest, and unreasonably restricted rather than accommodated the\n right to address public officials. Plaintiff also alleged that the ordinance was unconstitutional\n as applied to him because the Village manipulated the meeting schedules to unlawfully\n characterize rescheduled regular meetings as special meetings and the ordinance was enforced\n only against him “at all relevant times herein.” Plaintiff also sought an injunction against the\n enforcement of this ordinance.\n¶ 23 If a plaintiff prevails in an as-applied claim, he may enjoin the objectionable enforcement\n of the enactment only against himself, while a successful facial attack voids the enactment in\n its entirety and in all applications. Lamar Whiteco Outdoor Corp. v. City of West Chicago, 355\n\n 5\n Plaintiff states that his reference to the Open Meetings Act in count I of his complaint does not\n violate section 2-603 of the Code by seeking multiple theories of relief in a single count. Plaintiff\n explains that he refers to the Open Meetings Act to show that its purpose and the legislature’s intent in\n enacting it support his claim that defendants violated his constitutional right to free speech.\n\n -6-\n\f Ill. App. 3d 352, 365 (2005). An “as applied” challenge requires the challenging party to show\n that a statute is unconstitutional as it applies to him or her. People v. Garvin, 219 Ill. 2d 104,\n 117 (2006). Thus, the particular facts and circumstances surrounding the challenging party\n become relevant. In re M.A., 2015 IL 118049, ¶¶ 39-40; Napleton v. Village of Hinsdale, 229\n Ill. 2d 296, 305-06 (2008). Plaintiff, however, failed to allege any facts to support his\n conclusory as-applied allegations.\n¶ 24 A facial challenge to the constitutionality of a legislative enactment is the most difficult\n challenge to mount successfully. Napleton, 229 Ill. 2d at 305. In a typical facial challenge, the\n challenging party would have to establish that there is no set of circumstances under which the\n law would be valid. The fact that the law could be found unconstitutional under some\n circumstances would not establish its facial invalidity. In re M.A., 2015 IL 118049, ¶ 39.\n However, a facial challenge based on first amendment overbreadth is provided out of concern\n that the threat of enforcement of an overbroad law may chill or deter constitutionally protected\n speech, especially when the law imposes criminal penalties. Virginia v. Hicks, 539 U.S. 113,\n 118-19 (2003); People v. Clark, 2014 IL 115776, ¶ 11; People v. Bailey, 167 Ill. 2d 210, 226\n (1995). Yet, invalidating a law that in some of its applications is perfectly constitutional has\n harmful social costs. Recognizing that overbreadth invalidation is “strong medicine,” a law\n may be invalidated as overbroad only if a substantial number of its applications to protected\n speech are unconstitutional, judged in relation to the statute’s plainly legitimate sweep. United\n States v. Williams, 553 U.S. 285, 292-93 (2008); Hicks, 539 U.S. at 119-20; People v. Williams,\n 235 Ill. 2d 178, 199-200 (2009).\n¶ 25 On appeal, plaintiff makes no argument regarding, and cites no authority to support, his\n count I claim that the Village’s germaneness requirement violated the right to peaceful\n assembly under the Illinois Constitution and thus has forfeited review of that claim. It is a\n “well-established principle of appellate review” that “failure to argue an issue in the opening\n brief waives that issue on appeal.” Fink v. Banks, 2013 IL App (1st) 122177, ¶ 15; see Illinois\n Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) (the rule prevents the appellant from\n depriving the appellee of an opportunity to respond to appellant’s argument in writing, and\n failure to cite authority in support of appellate argument waives or forfeits the contention on\n appeal). Therefore, we will not address plaintiff’s claim that the germaneness requirement\n violated the peaceful assembly provision of the Illinois Constitution.\n¶ 26 The Village’s ordinance No. 2019-O-077 provides, in pertinent part, as follows.\n “The purpose of this policy is to ensure that citizens are allowed time to present their\n views pertaining to issues concerning the village while permitting the board, committee\n or commission to conduct their meetings in an effective manner. ***:\n ***\n (B) All public comments are limited to six minutes, and each person shall only\n be permitted to speak once; however, at regular and special village board meetings,\n each person shall be allowed to speak once in accordance with this policy, on each\n agenda item other than consent agenda items that are presented for final adoption.\n All public comment at special village board, special commission, or special\n committee meetings must be germane to items on that particular special meeting\n [sic]. At the discretion of the Chairperson, the person providing public comment\n may be allowed to comment further than six minutes or speak more than once. ***\n ***\n\n -7-\n\f (E) The Chairperson shall preserve order and decorum. Any person who\n engages in threatening or disorderly behavior when addressing a board,\n commission, or committee shall be deemed out-of-order by the Chairperson and\n their time ceased to address the board, commission, or committee at said meeting.”\n (Emphasis added.) Tinley Park Code of Ordinances § 43.01 (approved Dec. 3,\n 2019) (codifying ordinance No. 2019-O-077).\n This court notes that the Village’s requirement that public comments be germane to meeting\n agenda items applies only to special, and not regular, meetings. Thus, residents may talk on\n any topic during the public comment portion of regular meetings.\n\n¶ 27 1. Collateral Estoppel\n¶ 28 On September 2, 2021, the United States District Court for the Northern District of Illinois,\n Eastern Division, in Eberhardt v. Village of Tinley Park, No. 1:20-cv-01171 (N.D. Ill. Sept. 2,\n 2021), dismissed with prejudice plaintiff’s claim that the Village’s germaneness requirement\n violated his first amendment free speech rights. In reaching this conclusion, the federal court\n found that the special Village board meetings were not designated public forums and, thus, the\n germaneness requirement was subject to the lowest level of scrutiny.\n¶ 29 Plaintiff argues that res judicata should not apply because that decision never addressed\n his claim under the Illinois Constitution. Plaintiff also argues that the application of\n res judicata would be fundamentally unfair because the federal court’s finding was based on\n the court’s erroneous conclusion that municipal council meetings like the Village board’s\n meetings were not designated public forums. Plaintiff asserts that the special Village board\n meetings at issue are designated public forums subject to the strict scrutiny standard.\n¶ 30 Under Illinois law, collateral estoppel generally applies when\n “(1) the issue decided in the prior adjudication is identical with the one presented in the\n suit in question; (2) there was a final judgment on the merits in the prior adjudication;\n and (3) the party against whom the estoppel is asserted was a party or in privity with a\n party to the prior adjudication.” Bajwa, 208 Ill. 2d at 433.\n Per Illinois law, in addition to the foregoing requirements, the party against whom collateral\n estoppel is asserted must have had an effective and fair opportunity to litigate the issue in the\n prior proceedings. Chas. Ind Co. v. Cecil B. Wood, Inc., 56 Ill. App. 2d 30, 36-37 (1965). To\n that end, Illinois courts have noted that “while the purpose of the doctrine is to prevent a party\n from litigating the same issue twice, it should not be used to preclude a party from litigating\n the matter at all.” Gay v. Open Kitchens, Inc., 100 Ill. App. 3d 968, 972 (1981). Further, it must\n not be an injustice to apply the doctrine. Fred Olson Motor Service v. Container Corp. of\n America, 81 Ill. App. 3d 825, 830 (1980). In determining whether an issue has been raised and\n considered in a prior proceeding for collateral estoppel purposes, pleadings, testimony, jury\n instructions, findings, verdicts, and any other pertinent sources of information sensibly helpful\n to the inquiry may be examined. Chas. Ind Co., 56 Ill. App. 2d at 37-38.\n¶ 31 We find that all the foregoing criteria are satisfied in this case. Our review of the ruling in\n Eberhardt, No. 1:20-cv-01171, makes clear that plaintiff has already unsuccessfully presented\n to another court the arguments that the special Village board meetings in question were\n designated public forums and the constitutionality of the Village’s germaneness requirement\n was subject to strict scrutiny. Those issues were already adjudicated in 2021 in Eberhardt and\n\n\n -8-\n\f may not be litigated again in this case. Furthermore, it cannot be said that the application of\n collateral estoppel against plaintiff is unjust when he had an ample and robust opportunity to\n litigate the issue in his first amendment claim in Eberhardt, No. 1:20-cv-01171. Accordingly,\n we summarize the law on this issue and the federal court’s written analysis in Eberhardt\n because they are relevant to our consideration of plaintiff’s claims under the Illinois\n Constitution.\n\n¶ 32 2. First Amendment Forum-Based Approach\n¶ 33 “[T]he First Amendment does not guarantee the right to communicate one’s views at all\n times and places or in any manner that may be desired.” Heffron v. International Society for\n Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981). Rather, it is permissible that some\n expression be subject to “reasonable time, place, and manner restrictions.” Id. Such restrictions\n have been upheld “provided that they are justified without reference to the content of the\n regulated speech, that they serve a significant governmental interest, and that in doing so they\n leave open ample alternative channels for communication of the information.” Id. at 647-48.\n¶ 34 Moreover, it is “well settled that the government need not permit all forms of speech on\n property that it owns and controls.” International Society for Krishna Consciousness, Inc. v.\n Lee, 505 U.S. 672, 678 (1992). A forum-based approach is used “for assessing restrictions that\n the government seeks to place on the use of its property.” Id. Traditionally, the United States\n Supreme Court has recognized “three types of government-controlled spaces: traditional public\n forums, designated public forums, and nonpublic forums.” Minnesota Voters Alliance v.\n Mansky, 585 U.S. 1, 11 (2018).\n “In a traditional public forum—parks, streets, sidewalks, and the like—the government\n may impose reasonable time, place, and manner restrictions on private speech, but\n restrictions based on content must satisfy strict scrutiny, and those based on viewpoint\n are prohibited. [Citation.] The same standards apply in designated public forums—\n spaces that have not traditionally been regarded as a public forum but which the\n government has intentionally opened up for that purpose. [Citation.] In a nonpublic\n forum, on the other hand—a space that is not by tradition or designation a forum for\n public communication—the government has much more flexibility to craft rules\n limiting speech. [Citation.] The government may reserve such a forum for its intended\n purposes, communicative or otherwise, as long as the regulation on speech is\n reasonable and not an effort to suppress expression merely because public officials\n oppose the speaker’s view. [Citation.]\n [The Supreme] Court employs a distinct standard of review to assess speech\n restrictions in nonpublic forums because the government, no less than a private owner\n of property, retains the power to preserve the property under its control for the use to\n which it is lawfully dedicated. [Citation.] Nothing in the Constitution requires the\n Government freely to grant access to all who wish to exercise their right to free speech\n on every type of Government property without regard to the nature of the property or\n to the disruption that might be caused by the speaker’s activities. [Citation.]\n Accordingly, [Supreme Court] decisions have long recognized that the government\n may impose some content-based restrictions on speech in nonpublic forums, including\n restrictions that exclude political advocates and forms of political advocacy.” (Internal\n quotation marks omitted.) Id. at 11-12.\n\n -9-\n\f¶ 35 Examples of nonpublic forums include the interior of a building used as a polling place (id.\n at 12), an airport terminal (Lee, 505 U.S. at 678-79), the sidewalk leading from a post office’s\n parking lot to its front door (United States v. Kokinda, 497 U.S. 720, 726-27 (1990) (plurality\n opinion)), a charity drive aimed at federal employees (Cornelius v. NAACP Legal Defense &\n Educational Fund, Inc., 473 U.S. 788, 805 (1985)), a public school’s interschool mail system\n and teacher mail boxes (Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,\n 45-46 (1983)), a military base (Greer v. Spock, 424 U.S. 828, 838 n.10 (1976)), and advertising\n on a city transit system (Lehman v. City of Shaker Heights, 418 U.S. 298, 302-03 (1974)\n (plurality opinion)).\n¶ 36 The Seventh Circuit in DeBoer v. Village of Oak Park, 267 F.3d 558 (7th Cir. 2001), noted\n that\n “in recent cases, the Supreme Court has employed the term limited public forum to\n refer to a forum that the state has reserved for certain groups or for the discussion of\n certain topics; the Court has stated that, in such forums, any restriction must be\n viewpoint-neutral and reasonable in light of the purpose served by the forum.” (Internal\n quotation marks omitted.) Id. at 566 (citing Good News Club v. Milford Central School,\n 533 U.S. 98, 106-07 (2001) (where the Court, based on the parties’ agreement,\n considered school facilities open for a wide, but not unlimited, range of expressive\n activity to be a limited public forum), and Rosenberger v. Rector & Visitors of\n University of Virginia, 515 U.S. 819, 829 (1995) (which described the activities fund\n open to various student groups as a limited forum)).\n DeBoer stated that the Court’s “use of this terminology in this context has introduced some\n analytical ambiguity because the Court previously had employed the term ‘limited public\n forum’ as a subcategory of the designated public forum, subject to the strict scrutiny governing\n restrictions to designated public forums.” Id.\n¶ 37 Generally, courts have treated the public comment portion of municipal council meetings\n where any member of the public may talk on any subject as a designated public forum, which\n is subject to strict scrutiny. See, e.g., City of Madison Joint School District No. 8 v. Wisconsin\n Employment Relations Comm’n, 429 U.S. 167, 176 (1976) (“when the board sits in public\n meetings to conduct public business and hear the views of citizens, it may not be required to\n discriminate between speakers on the basis of *** their speech”); Surita v. Hyde, 665 F.3d 860,\n 869 (7th Cir. 2011) (involving a city council meeting where any member of the public could\n talk on any subject during the audience time); Mesa v. White, 197 F.3d 1041, 1044 (10th Cir.\n 1999) (noting a lack of dispute regarding whether the public comment period of a county\n commission meeting was a designated public forum); Collinson v. Gott, 895 F.2d 994, 1000\n (4th Cir. 1990) (per curiam) (Phillips, J., concurring) (“Speech at public meetings called by\n government officials for discussion of matters of public concern is entitled to normal first\n amendment protections against general restrictions or ad hoc parliamentary rulings by\n presiding officials.”); Musso v. Hourigan, 836 F.2d 736, 742 (2d Cir. 1988) (noting that an\n open school board meeting is a place where public speech is usually allowed); cf. Arkansas\n Educational Television Comm’n v. Forbes, 523 U.S. 666, 680 (1998) (contrasting a nonpublic\n forum candidate debate with “an open-microphone format”).\n¶ 38 The instant case, however, involves a forum where the public comment portion of the\n special Village board meeting is limited to members of the public talking about matters listed\n on the meeting’s agenda. Regarding agenda items, public bodies do not violate the first\n\n - 10 -\n\f amendment when they “confine their meetings to specified subject matter.” City of Madison\n Joint School District No. 8, 429 U.S. at 175 n.8; see Cornelius, 473 U.S. at 802 (public forum\n may be created by government designating “place or channel of communication *** for the\n discussion of certain subjects” (emphasis added)). “While a speaker may not be stopped from\n speaking because the moderator disagrees with the viewpoint he is expressing, see [Perry\n Education Ass’n, 460 U.S. at 60-61 (Brennan, J., dissenting, joined by Marshall, Powell, and\n Stevens, JJ.)], it certainly may stop him if his speech becomes irrelevant or repetitious.”\n (Emphasis added.) White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990) (“the\n [c]ouncil does not violate the first amendment when it restricts public speakers to the subject\n at hand”).\n¶ 39 Some courts have designated this type of forum, where the public comment is confined to\n agenda items, as a limited public forum, which is subject to the same scrutiny as nonpublic\n forums, i.e., reasonableness and viewpoint neutrality. See Reza v. Pearce, 806 F.3d 497, 502-\n 03 (9th Cir. 2015) (stating that city council meetings are dedicated solely to the discussion of\n certain topics and, therefore, are a limited public forum); Rowe v. City of Cocoa, 358 F.3d 800,\n 803 (11th Cir. 2004) (per curiam) (“As a limited public forum, a city council meeting is not\n open for endless public commentary speech but instead is simply a limited platform to discuss\n the topic at hand.”); Hotel Employees & Restaurant Employees Union, Local 100 v. City of\n New York Department of Parks & Recreation, 311 F.3d 534, 545, 553 (2d Cir. 2002) (a limited\n public forum exists “ ‘where the government opens a non-public forum but limits the\n expressive activity to certain kinds of speakers or to the discussion of certain subjects,’ ”\n (quoting New York Magazine v. Metropolitan Transportation Authority, 136 F.3d 123, 128 n.2\n (2d Cir. 1998)) and a designated public forum is defined as “a non-public forum that the\n government has opened for all types of expressive activity”); Travis v. Owego-Apalachin\n School District, 927 F.2d 688, 692 (2d Cir. 1991) (referring to the “limited public forum” as a\n subcategory of the designated public forum, where the government “opens a nonpublic forum\n but limits the expressive activity to certain kinds of speakers or to the discussion of certain\n subjects”); White, 900 F.2d at 1425 (“City Council meetings *** where the public is afforded\n the opportunity to address the Council, are the focus of highly important individual and\n governmental interests.” “[S]uch meetings, once opened, have been regarded as public forums,\n albeit limited ones.”); Deeper Life Christian Fellowship, Inc. v. Board of Education of New\n York, 852 F.2d 676, 679-80 (2d Cir. 1988) (“[u]nder the limited public forum analysis, property\n remains a nonpublic forum as to all unspecified uses [citations], and exclusion of uses—even\n if based upon subject matter or the speaker’s identity—need only be reasonable and viewpoint-\n neutral to pass constitutional muster” (citing Cornelius, 473 U.S. at 802, 806, and Perry\n Education Ass’n, 460 U.S. at 48)).\n¶ 40 In I.A. Rana Enterprises, Inc. v. City of Aurora, 630 F. Supp. 2d 912, 919, 924 (N.D. Ill.\n 2009), the court categorized a council meeting where public comments were subject to a\n relevancy requirement as a designated public forum but upheld its content-based relevancy\n restriction not under the strict scrutiny standard applicable to designated public forums but,\n rather, under the standard applicable to nonpublic forums, i.e., reasonable in light of the\n purpose served by the forum and viewpoint neutral. However, in Eberhardt, No. 1:20-cv-\n 01171, the federal district court disagreed with I.A. Rana Enterprises, Inc.’s categorization of\n the forum, but agreed with the level of scrutiny applied and the result. Specifically, the court\n in Eberhardt designated the forum subject to the Village’s germaneness requirement as a\n\n\n - 11 -\n\f nonpublic forum and thus subject to the requirements of reasonableness and viewpoint\n neutrality.\n¶ 41 In Illinois Dunesland Preservation Society v. Illinois Department of Natural Resources,\n 584 F.3d 719 (7th Cir. 2009), a nonprofit organization alleged the defendants violated the\n organization’s free speech rights by refusing to display in display racks in the park the\n organization’s pamphlet about avoiding asbestos contamination. The district court granted\n summary judgment in favor of the defendants, ruling that the display racks were not a public\n forum but instead were “ ‘a mini-library of resources for the public.’ ” Id. at 721, 724. The\n Seventh Circuit, noting that the forum analysis does not apply to libraries, affirmed the lower\n court’s award of summary of judgment in favor of the defendants. Id. at 724, 726. In so ruling,\n the Seventh Circuit stated that the lawyers, in framing their arguments in language taken from\n Supreme Court opinions, “have treated [the court] to a barrage of unhelpful First Amendment\n jargon.” Id. at 722. Regarding the Supreme Court’s forum-based analysis, the Seventh Circuit\n stated that it is difficult to see what difference there is between the fora restrictions and the\n decision a government actor (like a director of a state theater) must make among the groups\n (theater groups) clamoring for access to a particular forum (the stage). Id. at 724. The Seventh\n Circuit added that “it is rather difficult to see what work ‘forum analysis’ in general does.” Id.\n “It is obvious both that every public site of private expression has to be regulated to\n some extent and that the character of permitted regulation will vary with the differences\n among the different types of site. *** The constant (applicable even to nonpublic\n forums [citation]) is that regulation is not to be used as a weapon to stifle speech.” Id.\n¶ 42 Regardless of any discrepancies among the federal courts regarding the designation of\n council meetings that limit public comment to agenda items, we conclude, consistent with City\n of Madison Joint School District No. 8 and Cornelius, that such meetings are subject to the\n scrutiny standard of reasonableness and viewpoint neutrality because public bodies do not\n violate the first amendment when they “confine their meetings to specified subject matter.”\n City of Madison Joint School District No. 8, 429 U.S. at 175 n.8. With respect to viewpoint\n neutrality, the government may exclude a speaker\n “if he wishes to address a topic not encompassed within the purpose of a forum\n [citation], or if he is not a member of the class of speakers for whose especial benefit\n the forum was created [citation], [but] government violates the First Amendment when\n it denies access to a speaker solely to suppress the point of view he espouses on an\n otherwise includible subject.” Cornelius, 473 U.S. at 806.\n “Government discrimination among viewpoints—or the regulation of speech based on ‘the\n specific motivating ideology or the opinion or perspective of the speaker’—is a ‘more blatant’\n and ‘egregious form of content discrimination.’ ” Reed v. Town of Gilbert, 576 U.S. 155, 168-\n 69 (2015) (quoting Rosenberger, 515 U.S. at 829).\n¶ 43 As discussed below, the federal court’s decision in Eberhardt, No. 1:20-cv-01171, is\n consistent with our conclusion that relevancy restrictions on council meetings are subject to\n reasonableness and viewpoint neutrality scrutiny.\n\n¶ 44 3. First Amendment Ruling in Eberhardt, No. 1:20-cv-01171\n¶ 45 According to the federal court’s written order, the court categorized the special Village\n board meetings as a nonpublic forum and ruled that the Village could reserve its special\n\n\n - 12 -\n\f meetings for the intended purpose of discussing certain subjects as long as the regulation on\n speech was reasonable and not an effort to suppress expression merely because public officials\n opposed the speaker’s view. The court found that the Village’s germaneness requirement for\n the special Village board meetings was content based. Unlike traditional and designated public\n forums, where content-based restrictions on speech by the government must satisfy strict\n scrutiny—they must be narrowly tailored to serve compelling state interests, the special Village\n board meetings were nonpublic forums because they occurred on government controlled\n property set aside for the purpose of conducting certain specified business of the Village. As\n nonpublic forums, the special Village board meetings, which had content-based relevancy\n restrictions, need only satisfy the standard of reasonable in light of the purpose served by the\n forum and viewpoint neutrality.\n¶ 46 The federal court found that the Village and its board have a significant government interest\n in ensuring that the public comment period of its special Village board meetings proceeded in\n an orderly and efficient manner. Moreover, the Village’s regulation of the public comment\n portion of its regular board meetings, where members of the public could address the board on\n any topic, left open plenty of ways for Village residents like plaintiff to communicate.\n¶ 47 Regarding the requirement of section 2.06(g) of the Open Meetings Act (5 ILCS\n 120/2.06(g) (West 2020)) (i.e., that members of the public have an opportunity to address\n public officials like the Village board), the federal court stated that, as a constitutional matter,\n there was no right of public participation at government proceedings like the special Village\n board meetings. Moreover, section 2.06(g) did not transform the public comment portion of\n the special Village board meetings from a nonpublic forum to a designated public forum\n because, even though the Open Meetings Act required the Village to allow individuals to\n address Village officials, the Village may nevertheless impose rules for doing so under that\n statute. The federal court also cited the opinions of the Illinois Attorney General, which\n concluded that a municipality’s restrictions on the right to address public officials under section\n 2.06(g) of the Open Meetings Act must only be reasonably necessary to further a significant\n government interest. See 2019 Ill. Att’y Gen. Pub. Access Op. No. 19-002, at 5, https://illinois\n attorneygeneral.gov/Page-Attachments/FOIAPAC/2019-Binding-PAC-Opinions/19-002.pdf\n [https://perma.cc/9QX4-M8AQ]; 2014 Ill. Att’y Gen. Pub. Access Op. No. 14-012, at 5-7,\n https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2014-Binding-PAC-\n Opinions/14-012.pdf [https://perma.cc/75JQ-YCAP].\n¶ 48 In light of the purpose of special Village board meetings, the federal court held that the\n Village’s germaneness requirement for public comment at special board meetings was\n reasonable under the United States Constitution because, consistent with the conclusion\n assumed by courts for decades as stated in City of Madison Joint School District No. 8, 429\n U.S. at 175 n.8, “[p]lainly, public bodies may confine their meetings to specified subject\n matter.” The court concluded that plaintiff’s first amendment claim based on the Village’s\n germaneness requirement was dismissed with prejudice for failure to state a plausible claim\n for relief.\n¶ 49 Our review of federal law, as discussed above, establishes that the federal court’s\n conclusion is Eberhardt, No.1:20-cv-01171, is consistent with other federal courts that have\n addressed similar claims.\n\n\n\n\n - 13 -\n\f¶ 50 4. The Illinois Constitution\n¶ 51 The freedom of speech provision of the Illinois Constitution guarantees that “[a]ll persons\n may speak, write and publish freely, being responsible for the abuse of that liberty.” Ill. Const.\n 1970, art. I, § 4.\n “The relationship between article I, section 4, of the Illinois Constitution and the first\n amendment of the United States Constitution was discussed by [the supreme court] in\n People v. DiGuida, 152 Ill. 2d 104 (1992). After reviewing the history of the provision\n and the discussion of its terms at the 1970 Constitutional Convention, [the supreme\n court] concluded that the framers recognized that the Illinois Constitution may provide\n greater protection to free speech than does its federal counterpart. [Id.] at 121. [The\n supreme court] therefore rejected ‘any contention that free speech rights under the\n Illinois Constitution are in all circumstances limited to those afforded by the Federal\n Constitution.’ [Id.] at 122. ***\n [However, that the freedom of speech provision of the Illinois Constitution] may\n afford greater protection than the first amendment in some circumstances does not\n mean that greater protection is afforded in every context.” City of Chicago v. Pooh Bah\n Enterprises, Inc., 224 Ill. 2d 390, 446-47 (2006).\n¶ 52 In assessing plaintiff’s claim that the Village’s relevancy requirement for special Village\n board meetings violates the free speech provision of the Illinois Constitution, we have looked\n for other jurisdictions applying state constitutional provisions that are similar to article I,\n section 4, of the Illinois Constitution and whether those jurisdictions likewise held that their\n state constitutions provide no greater protection to speech at council meetings confined to\n certain subjects than is conferred by the first amendment.\n¶ 53 In Barron v. Kolenda, 203 N.E.3d 1125, 1133, 1136 (Mass. 2023), the Massachusetts\n Supreme Judicial Court addressed whether a town’s public comment civility code—which\n provided that “[a]ll remarks and dialogue in public meetings must be respectful and courteous,\n free of rude, personal, or slanderous remarks. Inappropriate language and/or shouting will not\n be tolerated” (internal quotation marks omitted)—violated, inter alia, the free speech provision\n of article 16 of the Massachusetts Declaration of Rights, as amended in 1948 by article 77 of\n the Articles of Amendments to the Massachusetts Constitution.6 Mass. Const. pt. 1, art. XVI\n (as amended by Mass. Const. Arts. of Amend., art. LXXVII). In reaching its conclusion that\n the town’s civility code violated its state constitution, the court stated that it need not survey\n the contested federal case law distinguishing limited and designated public forums and the\n different standards of review applicable to those forums under the first amendment. Barron,\n 203 N.E.3d at 1137. The court did not need to decide whether it would find the Supreme\n Court’s public, nonpublic, and limited public forum classifications instructive in resolving free\n speech rights under its own constitution because, under Massachusetts’s constitution, the\n appliable standard for content-based restrictions on political speech is clearly strict scrutiny.\n Id. at 1138 & n.12 (noting that “the protection provided by the [Massachusetts] Constitution is\n at least as great if not greater than the protection provided by the First Amendment for content-\n based governmental restrictions”).\n\n 6\n Article XVI of the Massachusetts Declaration of Rights provides, in relevant part, that “[t]he right\n of free speech shall not be abridged.” Mass. Const. pt. 1, art. XVI (as amended by Mass. Const. Arts.\n of Amend., art. LXXVII).\n\n - 14 -\n\f¶ 54 The court, however, acknowledged that its case did not involve meetings where the public’s\n comments were limited to particular agenda items. Id. at 1137 n.10, 1138 n.12. The court\n recognized “that even though a public meeting limited to a particular purpose may require a\n content-based restriction on comments, government must be able to hold such meetings to\n function efficiently.” Id. at 1138 n.12. Also, the court did not decide what standard of scrutiny\n applied to such meetings. Id.\n¶ 55 Consistent with the persuasive constitutional analysis, as set forth above, of the federal\n courts that have addressed the constitutionality under the first amendment of relevancy\n requirements on public comment at municipal meetings and concluded that such requirements\n are subject to the reasonableness and viewpoint neutrality standard of scrutiny, we find no\n basis for concluding that article I, section 4, of the Illinois Constitution affords greater\n protection to public speech at municipal meetings limited to agenda items than is provided by\n the federal constitution.\n¶ 56 We also find that the Village’s germaneness requirement, even though it is content based, 7\n satisfies reasonableness and viewpoint neutrality scrutiny. In light of the purpose of special\n Village board meetings to effectively conduct business on specified matters and ensure that\n citizens are allowed time to present their views on matters pertaining to issues concerning the\n Village, the Village’s germaneness requirement is reasonable under the Illinois Constitution\n because, consistent with the conclusion assumed by courts for decades, “[p]lainly, public\n bodies may confine their meetings to specified subject matter.” City of Madison Joint School\n District No. 8, 429 U.S. at 175 n.8 (recognizing the significance of the government’s interest\n in conducting orderly, efficient meetings of public bodies). Furthermore, the germaneness\n requirement is viewpoint neutral. The circumstances of this case are that plaintiff wishes to\n discuss non-agenda topics such as bribery, corruption, and campaign contributions at special\n Village board meetings that have a specific agenda. Even though the germaneness requirement\n would prohibit plaintiff’s comments on non-agenda items, it is a blanket prohibition. The\n germaneness requirement does not selectively prohibit or suppress speech as concerns any\n singular viewpoint or message or individual speaker but, rather, simply bars discussion of non-\n agenda items across the board. See, e.g., Weinberg v. Village of Clayton, 537 F. Supp. 3d 344,\n 364 (N.D.N.Y. 2021) (holding that rules prohibiting public comment about matters under\n current litigation at municipal board meetings were permissible restrictions of speech under\n the first amendment). Also, members of the public may address the Village board on any topic\n at regular Village board meetings.\n¶ 57 The Village’s germaneness requirement at special Village board meetings makes content-\n based exclusions of speech that does not fall within the category of uses to which the forum\n has been opened, and those exclusions satisfy the viewpoint-neutral and reasonableness\n criteria. Thus, count I of plaintiff’s second amended complaint—that Village ordinance No.\n 2019-O-077 is invalid under article I, section 4, of the Illinois Constitution—fails to state a\n cause of action for which relief can be granted. Therefore, pursuant to section 2-615 of the\n Code, the trial court properly dismissed count I with prejudice.\n\n\n\n 7\n “Government regulation of speech is content based if a law applies to particular speech because\n of the topic discussed or the idea or message expressed.” Reed, 576 U.S. at 163.\n\n - 15 -\n\f¶ 58 5. The Open Meetings Act\n¶ 59 Plaintiff contends that free speech rights should be construed more broadly under the\n Illinois Constitution than under the United States Constitution because the purposes and\n legislative intent of the Open Meetings Act (5 ILCS 120/1 et seq. (West 2020)), as well as\n FOIA (5 ILCS 140/1 et seq. (West 2020)), “and the interplay of the statutory mandates\n contained therein *** support the exercise of bedrock Constitutional rights under both the\n federal and State Constitutions.” Plaintiff, however, cites no relevant legal authority to support\n this contention.\n¶ 60 “[A] reviewing court is entitled to have the issues on appeal clearly defined with pertinent\n authority cited and a cohesive legal argument presented. The appellate court is not a depository\n in which the appellant may dump the burden of argument and research.” (Internal quotation\n marks omitted.) Gandy v. Kimbrough, 406 Ill. App. 3d 867, 875 (2010). Illinois Supreme Court\n Rule 341(h)(7) (eff. Oct. 1, 2020) requires a clear statement of contentions with citation of the\n authorities relied on. This rule is not merely a suggestion but is necessary for the proper and\n efficient administration of the courts. First National Bank of Marengo v. Loffelmacher, 236 Ill.\n App. 3d 690, 691-92 (1992). We will not complete legal research to find support for this issue.\n Issues that are ill-defined and insufficiently presented do not satisfy the rule and are considered\n forfeited. Express Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838, 855 (2007).\n¶ 61 Forfeiture notwithstanding, section 2.06(g) of the Open Meetings Act (5 ILCS 120/2.06(g)\n (West 2020)) provides that “[a]ny person shall be permitted an opportunity to address public\n officials under the rules established and recorded by the public body.” (Emphasis added.)\n Section 2.06(g) inherently recognizes that there can be rules, and it does not confer a right on\n plaintiff to be able to speak at all meetings about all subjects.\n¶ 62 Even if we assumed that the Village’s germaneness requirement violated section 2.06(g),\n the Open Meetings Act does not define the scope of the free speech right under the Illinois\n Constitution, and a violation of that statute would not itself establish that the Village’s\n germaneness requirement also deprived plaintiff of his free speech rights under the Illinois\n Constitution. See, e.g., Davis v. Scherer, 468 U.S. 183, 194-96 (1984) (rejecting the contention\n that a violation of a related state statute or regulation necessarily renders the state actor’s\n actions unreasonable for purposes of determining qualified immunity). The right afforded\n under section 2.06(g) simply establishes that the Village must allow public comments at board\n meetings to some extent. Consistent with section 2.06(g), the Village’s germaneness\n requirement allows public comment on agenda items at special Village board meetings and\n public comment on any topic at regular Village board meetings. As discussed above, the\n Village’s germaneness requirement does not violate plaintiff’s free speech rights.\n\n¶ 63 B. Section 1983 Claim\n¶ 64 Plaintiff, in count II of his second amended complaint, alleged that defendants, without\n authority but acting under color of law, filed with the ARDC a request for an investigation\n against him, which contained intentional and knowing false facts and misrepresentations.\n According to plaintiff, this investigation request was intended to harass him, retaliate against\n him for filing Eberhardt, No. 1:20-cv-01171, in federal court, and interfere with and suppress\n his freedom of speech, which was critical of defendants’ conduct or fitness for office. Plaintiff\n sought damages against all the individual defendants under the guarantees of the Civil Rights\n Act (42 U.S.C. § 1983 (2018)) for alleged violations of his free speech rights under the first\n\n - 16 -\n\f amendment and due process and equal protection rights under the fourteenth amendment of\n the United States Constitution based on defendants’ ARDC investigation request.\n¶ 65 Initially, we note that plaintiff makes no argument regarding, and cites no authority to\n support, his claims of due process and equal protection violations and thus has forfeited review\n of those claims. See Fink, 2013 IL App (1st) 122177, ¶ 15; Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1,\n 2020). We also note that plaintiff filed his second amended complaint against the Village\n defendants in their individual capacities and not their official capacities as Village officials and\n employees. As the Supreme Court explained in Kentucky v. Graham, 473 U.S. 159 (1985),\n “[p]ersonal-capacity suits seek to impose personal liability upon a government official for\n actions he takes under color of state law. [Citation.] Official-capacity suits, in contrast,\n ‘generally represent only another way of pleading an action against an entity of which [a\n government official] is an agent.’ ” Id. at 165 (quoting Monell v. Department of Social Services\n of New York, 436 U.S. 658, 690 n.55 (1978)); see Doe v. Calumet City, 161 Ill. 2d 374, 400\n (1994), overruled on other grounds by DeSmet v. County of Rock Island, 219 Ill. 2d 497 (2006)\n (distinguishing between personal and official capacity suits). This distinction is important\n because different requirements exist for establishing personal and municipal liability in a suit\n brought under section 1983. In order to establish personal liability, “it is enough to show that\n the official, acting under color of state law, caused the deprivation of a federal right.” (Internal\n quotation marks omitted.) Doe, 161 Ill. 2d at 401. Municipal liability, on the other hand,\n requires the plaintiff to make an additional “showing that the underlying deprivation resulted\n from a municipal policy or custom.” Id.\n¶ 66 “Section 1983 establishes a cause of action for ‘the deprivation of any rights, privileges, or\n immunities secured by the Constitution and [federal] laws’ by any person acting ‘under color\n of any statute, ordinance, regulation, custom, or usage, of any State or Territory.’ ” Fellhauer\n v. City of Geneva, 142 Ill. 2d 495, 514 (1991) (quoting 42 U.S.C. § 1983 (1982)); see Stahl v.\n Village of Hoffman Estates, 296 Ill. App. 3d 550, 558 (1998). “Two allegations must be made\n to state a claim under that provision.” Fellhauer, 142 Ill. 2d at 514. “ ‘First, the plaintiff must\n allege that some person has deprived him of a federal right. Second, [plaintiff] must allege that\n the person who has deprived him of that right acted under color of state or territorial law.’ ”\n Id. (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)). The purpose of section 1983 is “to\n ‘deter state actors from using the badge of their authority to deprive individuals of their\n federally guaranteed rights and to provide relief to victims if such deterrence fails.’ ” Estate of\n Strocchia v. City of Chicago, 284 Ill. App. 3d 891, 902 (1996) (quoting Wyatt v. Cole, 504\n U.S. 158, 161 (1992)).\n¶ 67 As an initial matter, defendants argue that the trial court properly dismissed plaintiff’s\n section 1983 claim under section 2-619 of the Code because Illinois Supreme Court Rule 775\n (eff. Dec. 7, 2011) grants them absolute immunity from any civil liability relative to claims\n arising out of their submission of a request for investigation to the ARDC. Rule 775 provides:\n “Any person who submits a claim to the Client Protection Program or who\n communicates a complaint concerning an attorney or allegations regarding the\n unauthorized practice of law to the [ARDC], or its administrators, staff, investigators\n or any member of its boards, shall be immune from all civil liability which, except for\n this rule, might result from such communications or complaint. The grant of immunity\n provided by this rule shall apply only to those communications made by such persons\n to the [ARDC], its administrators, staff, investigators and members of its boards.” Id.\n\n - 17 -\n\f Defendants argue that Rule 775 assures that individuals are in no way discouraged from\n lodging complaints with the ARDC where attorneys are concerned, and plaintiff is an attorney.\n¶ 68 Illinois courts have recognized that persons making reports to the ARDC enjoy absolute\n immunity from state law tort liability. Lykowski v. Bergman, 299 Ill. App. 3d 157, 165 (1998)\n (involving a defamation claim). However, the same immunity does not apply to alleged federal\n civil rights violations. As the Supreme Court explained in Martinez v. California, 444 U.S. 277\n (1980):\n “ ‘Conduct by persons acting under color of state law which is wrongful under 42\n U.S.C.§ 1983 or § 1985(3) cannot be immunized by state law. A construction of the\n federal statute which permitted a state immunity defense to have controlling effect\n would transmute a basic guarantee into an illusory promise; and the supremacy clause\n of the Constitution insures that the proper construction may be enforced.’ ” Id. at 284\n n.8 (quoting Hampton v. City of Chicago, 484 F.2d 602, 607 (7th Cir. 1973)).\n See Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 375 (1990) (“The elements of, and the\n defenses to, a federal cause of action are defined by federal law.”); Tiemann v. Tul-Center,\n Inc., 18 F.3d 851, 853 (10th Cir. 1994) (holding that the Oklahoma Governmental Tort Claims\n Act (Okla. Stat. Ann. tit. 51, §§ 151-171. (1988 & Supp. 1994)) did not immunize the\n defendants from liability under 42 U.S.C. § 1983). Thus, defendants cannot rely on Rule 775\n to support dismissal pursuant to section 2-619 of the Code of plaintiff’s section 1983 claim.\n¶ 69 Count II of plaintiff’s second amended complaint is a first amendment retaliation claim.\n To that end, the second amended complaint reads, in pertinent part:\n “74. On February 8, 2020, Plaintiff filed the original Complaint in the United States\n District Court naming Defendant Glotz, Defendant Walsh and others seeking redress\n for violations of Plaintiff’s Constitutional rights.\n 75. In retaliation for the filing of the same, on April 15, 2020, Defendant Niemeyer\n submitted a Request for Investigation.\n 76. Plaintiff submitted a Response to the ‘Request for investigation’ on May 13,\n 2020.\n 77. Defendant Carr submitted a reply on June 4, 2020.\n 78. The Request for Investigation contained purposefully false and misleading\n statements and false statements of fact.\n ***\n 80. Defendant Walsh intended that the true authorship of the document be secreted\n because Walsh was aware of the false and misleading statements he had made therein.\n 81. It was clear to Plaintiff that Defendant Walsh had been the primary author of\n the Request for Investigation.\n ***\n 86. Defendant Niemeyer intentionally disregarded the limits of his lawful authority\n to support Defendant Glotz’s and Defendant Walsh’s plan to retaliate personally and\n professionally against Plaintiff in violation of statutory and Constitutional guarantees.\n ***\n 90. Defendants Glotz and Walsh had conferred and drafted the Request for\n Investigation meant to be a one and done to accomplish the goal of ending Plaintiff’s\n\n\n - 18 -\n\f FOIA requests as well as FOIA Requests for Review being sent to the Illinois Attorney\n General Public Access Counselor and the FOIA litigation ***, as well as litigation that\n had been filed against the Village *** all targeted to and that did violate Plaintiff’s\n Constitutional rights.\n ***\n 95. Thereafter, on May 28, 2021, Defendant Carr submitted additional information\n with regard to the Request for Investigation that contained purposeful\n misrepresentations and incomplete presentations of fact all intended to further\n intimidate and prejudice Plaintiff as well as further retaliate against Plaintiff for his\n exercise of statutory and Constitutional rights.” (Internal quotation marks omitted.)\n¶ 70 To bring a first amendment retaliation claim, plaintiff must allege that\n “(1) [he] engaged in constitutionally protected activity; (2) the defendant[s’] actions\n would ‘chill a person of ordinary firmness’ from continuing to engage in the protected\n activity; and (3) the protected activity was a substantial motivating factor in the\n defendant[s’] conduct—i.e., that there was a nexus between the defendant[s’] actions\n and an intent to chill speech.” Arizona Students’ Ass’n v. Arizona Board of Regents,\n 824 F.3d 858, 867 (9th Cir. 2016) (quoting O’Brien v. Welty, 818 F.3d 920, 933 (9th\n Cir. 2016)).\n Plaintiff may make the showing relevant to the third element by relying on direct or\n circumstantial evidence. Dempsey v. Johnson, 2016 IL App (1st) 153377, ¶ 26. “For example,\n the plaintiff may rely on evidence of temporal proximity between the protected activity and\n alleged retaliatory conduct to demonstrate that [defendants’] purported reasons for [their]\n conduct are pretextual or false.” Id. Further, to prevail on a retaliation claim, plaintiff need\n only show that defendants “ ‘intended to interfere’ ” with his first amendment rights and that\n he suffered some injury as a result; plaintiff is not required to demonstrate that his first\n amendment rights were actually suppressed or inhibited. Arizona Students’ Ass’n, 824 F.3d at\n 867 (quoting Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 1300\n (9th Cir. 1999)).\n¶ 71 Count II fails from a pleading standpoint in several respects. The second amended\n complaint contains no allegations of personal involvement with respect to the request for\n investigation submitted to the ARDC against any defendants other than Niemeyer, Glotz, Carr,\n and Walsh. Liability under section 1983 requires personal involvement. See Grieveson v.\n Anderson, 538 F.3d 763, 778 (7th Cir. 2008). Without factual allegations of personal\n involvement by Brennan, Thirion, Brady, and Mueller with respect to the complaint to the\n ARDC, plaintiff has not stated, pursuant to section 2-615 of the Code, a section 1983 claim\n against them. Accordingly, we affirm, pursuant to section 2-615 of the Code, the trial court’s\n dismissal with prejudice of count II against defendants Brennan, Thirion, Brady, and Mueller.\n¶ 72 As to the first element of his first amendment retaliation claim, plaintiff seems to allege\n that the constitutionally protected activity in which he engaged was the right to access the\n courts when he filed on February 8, 2020, his federal lawsuit, Eberhardt, No. 1:20-cv-01171,\n against defendants Niemeyer, Glotz, Walsh, and others. (Carr was not a defendant in case No.\n 1:20-cv-01171.) See Miskovsky v. Jones, 437 F. App’x 707, 713 (10th Cir. 2011) (holding that\n it is a constitutionally protected activity to file pleadings in federal court); Smith v. Maschner,\n 899 F.2d 940, 947 (10th Cir. 1990) (stating that retaliation for exercise of right of access to\n courts is a constitutional violation).\n\n - 19 -\n\f¶ 73 As to the third element, plaintiff relies on evidence of temporal proximity between the\n alleged protected activity and retaliatory conduct to establish that the activity was a substantial\n motivating factor in the conduct of defendants Niemeyer, Glotz, Carr, and Walsh—i.e., that\n there was a nexus between those defendants’ requesting an ARDC investigation of plaintiff\n and an intent to chill his effort to redress his grievances for alleged violations of his\n constitutional rights by filing a lawsuit. As circumstantial evidence of those four defendants’\n retaliatory intent, plaintiff sufficiently alleged that the investigation request was made to the\n ARDC about two months after plaintiff filed Eberhardt, No. 1:20-cv-01171, against\n defendants Niemeyer, Glotz, Walsh, and others in federal court.\n¶ 74 However, defendants argue, and we agree, that plaintiff failed to plead any facts to support\n the second element of his retaliation claim. As to the second element, in considering whether\n the conduct of defendants adversely affected plaintiff’s first amendment rights, courts evaluate\n whether the “conduct would likely deter ‘a person of ordinary firmness’ from the exercise of\n [his] First Amendment rights.” Constantine v. Rectors & Visitors of George Mason University,\n 411 F.3d 474, 500 (4th Cir. 2005). The ordinary-firmness test is an objective test that is\n “designed to weed out trivial matters from those deserving the time of the courts as real and\n substantial violations of the First Amendment.” Garcia v. City of Trenton, 348 F.3d 726, 728-\n 29 (8th Cir. 2003). As such, courts have held that retaliatory conduct must have resulted in\n something more than a “de minimis inconvenience” to the exercise of first amendment rights.\n Constantine, 411 F.3d at 500. “ ‘Merely encouraging or engaging in action is not an actionable\n constitutional violation unless it results in some harm to the plaintiff.’ ” Weise v. Colorado\n Springs, 421 F. Supp. 3d 1019, 1043 (D. Colo. 2019) (quoting Glover v. Mabrey, 384 F. App’x\n 763, 770 (10th Cir. 2010)). Applying the ordinary-firmness test is a “fact intensive” inquiry\n that focuses on the status of the speaker, the relationship between the speaker and the retaliator,\n and the nature of the retaliatory acts. Suarez Corp. Industries v. McGraw, 202 F.3d 676, 686\n (4th Cir. 2000). Reputational injury is generally insufficient, by itself, to satisfy the second\n element of a first amendment retaliation claim. See Eaton v. Meneley, 379 F.3d 949, 956 (10th\n Cir. 2004).\n¶ 75 Here, plaintiff fails to allege facts to support an inference that the request for investigation\n to the ARDC constituted an adverse action that deterred his first amendment activity. Nowhere\n in the second amended complaint does he allege that the submission of the request for\n investigation to the ARDC deterred him from engaging in protected speech. Moreover, the\n pleadings and exhibits indicate that plaintiff continued to file lawsuits and speak at Village\n board meetings notwithstanding the request for investigation to the ARDC. Specifically,\n plaintiff filed a second federal lawsuit in 2020, No. 1:20-cv-03269, against the Village and six\n of its officials, which the court dismissed without prejudice in October 2020 for failing to state\n a short and plain statement of his claims. Thereafter, plaintiff filed an amended complaint,\n which the court dismissed in November 2020, after concluding that it was materially identical\n to and duplicative of the lawsuit in federal case No. 1:20-cv-01171. Eberhardt v. Village of\n Tinley Park, No. 1:20-cv-03269, 2020 WL 6565226 (N.D. Ill. Nov. 9, 2020). In May 2021,\n plaintiff filed in the circuit court of Cook County the instant case, No. 21-L-65042, which\n raised issues previously raised in federal case No. 1:20-cv-01171, including the Village’s\n responses to plaintiff’s FOIA requests, the Village limiting the time available for public\n comment at Village board meetings, claims for violations of plaintiff’s constitutional rights,\n and the unlawful appointment of Walsh’s law firm as counsel for the Village. Thereafter,\n\n\n - 20 -\n\f plaintiff amended his complaint in October 2021 and April 2022. Also, in August 2021,\n plaintiff filed Eberhardt v. Village of Tinley Park, No. 21-CH-3867 (Cir. Ct. Cook County),\n which included claims for alleged FOIA violations, unlawful time restrictions for public\n comment at Village board meetings, and the appointment of Walsh’s law firm as counsel for\n the Village. Thereafter, plaintiff amended that complaint in September 2021.\n¶ 76 Accordingly, we affirm, under section 2-615 of the Code for failure to state a claim, the\n trial court’s dismissal with prejudice of count II of plaintiff’s second amended complaint.\n\n¶ 77 C. Appointment of Outside Counsel\n¶ 78 Plaintiff alleged, in count III of his second amended complaint, that the Village and certain\n defendants, without authority, appointed defendant Walsh to represent the Village and its\n officials or employees as their attorney and obligated the taxpayers to pay for defendants’\n personal and professional attacks on plaintiff and not for any proper purpose of the Village.\n Plaintiff sought declaratory and injunctive relief against the Village, Glotz, Thirion, Brady,\n Brennan, Mueller, and Walsh for their alleged unlawful appointment of Walsh as their\n attorney. Plaintiff also sought an order for Walsh to reimburse the Village for any taxpayer\n funds paid to him or his law firm.\n¶ 79 The Village defendants and Walsh argue that the trial court properly dismissed, pursuant\n to section 2-619 of the Code, count III with prejudice because (1) plaintiff lacked taxpayer\n standing to assert the claim and (2) the Village’s appointment of the Walsh Law Group, P.C.,\n was lawful. We agree.\n\n¶ 80 1. Standing\n¶ 81 The doctrine of standing allows courts to “preserve for consideration only those disputes\n which are truly adversarial and capable of resolution by judicial decision.” Martini v. Netsch,\n 272 Ill. App. 3d 693, 695 (1995). Standing consists of an “injury in fact to a legally recognized\n interest.” Id. The injury must be (1) “distinct and palpable,” (2) “fairly traceable to the\n defendant’s actions,” and (3) “substantially likely to be prevented or redressed by the grant of\n the requested relief.” Id. Under Illinois law, the defendant has the burden to both plead and\n prove the plaintiff’s lack of standing. Chicago Teachers Union, Local 1 v. Board of Education\n of Chicago, 189 Ill. 2d 200, 206 (2000).\n “The key to taxpayer standing is the plaintiff’s liability to replenish public revenues\n depleted by an allegedly unlawful governmental action. Such taxpayers have a legally\n cognizable interest in their tax liability, their increased tax liability is a specific injury,\n and their injury is redressable by an injunction against the challenged governmental\n expenditure of tax funds.” Barber v. City of Springfield, 406 Ill. App. 3d 1099, 1102\n (2011).\n “A plaintiff whose claims rest on his or her standing as a taxpayer must allege such equitable\n ownership of funds depleted by misappropriation and his or her liability to replenish them in\n the complaint; otherwise, the complaint is ‘fatally defective.’ ” Id. (quoting Golden v. City of\n Flora, 408 Ill. 129, 131 (1951)).\n¶ 82 Even assuming that the second amended complaint alleged a “distinct and palpable” injury,\n the second amended complaint did not allege that any injury is “fairly traceable” to Walsh. It\n cannot reasonably be disputed that Walsh’s law firm was appointed as outside counsel for the\n\n\n - 21 -\n\f Village, and he was not an officer of the Village as defined and codified in sections 8-1-7 and\n 3.1-30-5(a)(5) of the Illinois Municipal Code (65 ILCS 5/3.1-30-5(a)(5), 8-1-7 (West 2020)).\n See Thurman v. Department of Public Aid, 25 Ill. App. 3d 367, 370 (1974) (“statutes are a\n matter of public knowledge, and when one comes to the attention of the court, it must take\n judicial notice of same”). As outside counsel, Walsh did not have the means to commit the acts\n complained of, such as setting meeting times or responding to FOIA requests. Plaintiff\n complained at length about the alleged procedures used by the Village to appoint Walsh.\n However, Walsh was not vested with the statutory authority to appoint his firm as outside\n counsel for the Village or to adopt procedures employed by the Village for purposes of\n appointing outside counsel. The second amended complaint alleged that Walsh “consulted and\n counseled” Mayor Glotz on his appointment, but that allegation, standing alone does not\n constitute a distinct and palpable injury attributable to Walsh. Accordingly, we conclude that\n the second amended complaint does not contain allegations that could serve as the basis for\n standing to sue Walsh.\n¶ 83 Next, citing public records, defendants argue that plaintiff did not own a home in Tinley\n Park during the events of which he complains, or possibly ever, and thus was not a “taxpayer”\n for purposes of establishing standing. Specifically, plaintiff formerly resided at 7107 177th\n Place, Tinley Park, Illinois. According to the recorded warranty deed, the property was owned\n solely by Gloria Villanueva. According to property taxes for tax years 2015-20, Ms. Villanueva\n was the only individual responsible to pay property taxes on 7107 177th Place. Defendants\n argue that as the owner of the real property, Ms. Villanueva was liable to “replenish funds\n depleted” through payment of property taxes. Plaintiff was not. See 35 ILCS 200/9-175 (West\n 2020) (“The owner of property on January 1 in any year shall be liable for the taxes of that\n year ***.”).\n¶ 84 Plaintiff responds that he was a taxpayer because he paid Ms. Villanueva’s property taxes,\n which were based on his senior exemption. Also, as a resident of the Village and self-employed\n attorney with offices in the Village, he was subject to the telecommunications tax, local home\n rule sales tax, local motor fuel tax, and state income tax, which were all collected by the State\n of Illinois and forwarded to the Village for deposit into the general fund. Plaintiff also paid the\n annual motor vehicle tax and utility bill. Defendants reply, without citation to any relevant\n authority, that nonpossessory residency does not convey standing. See Anderson Dundee 53,\n L.L.C. v. Terzakis, 363 Ill. App. 3d 145, 160 (2005) (failure to cite any pertinent authority in\n support of an argument forfeits review of the issue on appeal).\n¶ 85 The record indicates that plaintiff filed his initial complaint in this matter in May 2021 and\n filed his first amended complaint in October 2021. Furthermore, according to public records,\n plaintiff moved to Clermont, Florida, in or near December 2021 with Ms. Villanueva after she\n sold her home in Tinley Park. Plaintiff filed the second amended complaint on April 13, 2022.\n Plaintiff argues that his taxpayer standing is determined based on his status when he filed his\n initial complaint in May 2021 and that his actions after that date are irrelevant to the issue of\n his standing. See Lee v. Fosdick, 2014 IL App (4th) 130939, ¶ 16; Deutsche Bank National\n Trust Co. v. Iordanov, 2016 IL App (1st) 152656, ¶ 34.\n¶ 86 Defendants argue, however, that plaintiff’s amended complaints do not refer to or adopt\n the prior complaints and that an “amended complaint controls and supersedes earlier\n complaints where the amended complaint does not refer to or adopt the original complaint.”\n See Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 154 (1983).\n\n - 22 -\n\f “Where an amendment is complete in itself and does not refer to or adopt the prior pleading,\n the earlier pleading ceases to be a part of the record for most purposes, being in effect\n abandoned and withdrawn.” Bowman v. County of Lake, 29 Ill. 2d 268, 272 (1963).\n¶ 87 Putting aside the issue of whether plaintiff was a homeowner or taxpayer liable to replenish\n funds allegedly depleted in Tinley Park before he moved to Florida, he certainly was not liable\n to replenish the Tinley Park general fund on April 13, 2022, when he filed the operative\n complaint in this case. As such, plaintiff was not saddled with the “liability to replenish public\n revenues depleted by an allegedly unlawful governmental action” and his claims are “fatally\n defective.” See Barber, 406 Ill. App. 3d at 1102. Accordingly, we conclude that, consistent\n with section 2-619 of the Code, the trial court correctly dismissed with prejudice count III of\n the second amended complaint against the defendants based on the affirmative defense of lack\n of standing.\n\n¶ 88 2. The Village’s Appointment of Walsh’s Law Firm\n¶ 89 Even assuming that plaintiff has standing to pursue his count III claim, defendants raise\n another affirmative defense to support dismissal with prejudice of plaintiff’s claim that the\n appointment of the Walsh Law Group, P.C., as outside counsel in July 2019 was unlawful.\n Defendants argue the trial court properly dismissed this claim pursuant to section 2-619 of the\n Code because the pleadings and properly filed exhibits affirmatively establish that the\n procedures the Village used to appoint the Walsh Law Group, P.C., did not violate any law or\n ordinance.\n¶ 90 Plaintiff responds that the Village’s ratification of the Walsh Law Group, P.C.’s\n appointment violated Illinois law and the Village’s ordinances. According to plaintiff, the\n mayor had to make the original appointment of the Walsh Law Group, P.C., and carry out the\n ratification of the engagement of that firm with the advice and consent of the Village board.\n Defendants, however, present affirmative matter that completely refutes plaintiff’s allegations.\n¶ 91 Village ordinance No. 2017-O-012 (the purchasing ordinance) 8 adopts a purchasing\n manual for the Village. Tinley Park Ordinance No. 2017-O-012 (approved Mar. 7, 2017).\n Section 1 of the purchasing manual expressly states that it applies to “purchases and contracts\n in amounts less than $20,000.00.” Section 2 of the purchasing manual (“Authority to\n Purchase”) provides that “[t]he Village Manager is authorized to engage the services of\n engineers, attorneys or other professional consultants for any matter that will create an\n obligation for such services not exceeding $20,000.00 without prior approval of the Village\n Board.” (Emphasis added.) Furthermore, section 8-1-7(a) of the Illinois Municipal Code\n provides that the Village’s corporate authorities “may authorize heads of departments or other\n 8\n We reject plaintiff’s claim that Walsh did not “properly file” the purchasing ordinance. It was\n attached to Walsh’s motion to dismiss as exhibit No. 5 and constituted an affirmative matter that\n negated count III of the second amended complaint. Slay v. Allstate Corp., 2018 IL App (1st) 180133,\n ¶ 44 (“ ‘An affirmative matter *** is something in the nature of a defense that negates the cause of\n action completely or refutes crucial conclusions of law or conclusions of material fact contained in or\n inferred from the complaint.’ ” (quoting Dewan v. Ford Motor Co., 363 Ill. App. 3d 365, 368 (2005)).\n Also, plaintiff makes a vague assertion that the filed copy of the purchasing ordinance was superseded,\n but he does not allege that any superseding version of the purchasing ordinance altered the Village\n manager’s purchasing authority so as to defeat defendants’ argument for dismissal under section 2-619\n of the Code.\n\n - 23 -\n\f separate agencies of the municipality to make necessary expenditures for the support thereof\n upon the basis of the appropriations of the preceding fiscal year.” 65 ILCS 5/8-1-7(a) (West\n 2020). Nowhere does plaintiff allege that the Walsh Law Group, P.C., billed the Village more\n than $20,000 for the firm’s services prior to plaintiff initiating this litigation.\n¶ 92 Before plaintiff filed his second amended complaint, he was aware of the purchasing\n ordinance and knew that the Village manager had the authority to appoint the Walsh Law\n Group, P.C., without board approval. Specifically, plaintiff had made the same unlawful\n appointment allegations against defendants in the federal district court in Eberhardt, No. 1:20-\n cv-01171, before that case was dismissed for lack of standing and jurisdiction. Moreover,\n Walsh had served on plaintiff three separate “safe harbor” notices in compliance with Rule 11\n of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 11), informing plaintiff that the\n purchasing ordinance authorized the Village manager to appoint outside counsel without\n approval from the Village board of trustees and that each iteration of the complaint lacked\n merit. 9 Despite clear authorization for the Village manager to appoint the Walsh Law Group,\n P.C., as outside counsel, plaintiff refiled in the instant case the same allegations challenging\n the firm’s appointment.\n¶ 93 On appeal, plaintiff asserts that Walsh was appointed as an “officer” of the Village and\n cites section 3.1-30-5(a)(5) of the Illinois Municipal Code (65 ILCS 5/3.1-30-5(a)(5) (West\n 2020)) for support. Section 3.1-30-5(a)(5) relates to the appointment of municipal officers.\n Likewise, section 31.008 of the Village’s code of ordinances provides that the Village\n president, with the advice and consent of the board, appoints “all officers of the village.” Tinley\n Park Code of Ordinances § 31.008(A)(1) (adopted 1977). However, as discussed above,\n Walsh, as outside counsel, was not an “officer” of the Village. Section 31.115 of the code of\n ordinances, which was adopted in 1977, permits the Village president to retain an attorney to\n advise the Village with the advice and consent of the board (Tinley Park Code of Ordinances\n § 31.115 (adopted 1977)), but the purchasing ordinance notes that “[a]ll Ordinances, or parts\n of Ordinances in conflict with the provisions of this Ordinance are hereby repealed to the extent\n of any such conflict” (Tinley Park Ordinance No. 2017-O-012 (approved Mar. 7, 2017)).\n¶ 94 The court in Sampson v. Graves, 304 Ill. App. 3d 961, 964-65 (1999), distinguished\n between appointments of “officers” of the Village, such as a chief of police or the village\n attorney, and those of professional consultants, including attorneys. The court underscored that\n a mayoral appointment is not required to retain additional, outside legal services. Id. To support\n his claim on appeal, plaintiff cites Village of Westmont v. Lenihan, 301 Ill. App. 3d 1050\n (1998), where a board improperly took unilateral action to hire a village attorney. That case,\n however, is distinguishable from the case at bar because here, in contrast to the village in\n Lenihan, there is no ordinance granting the mayor the sole authority to hire attorneys for the\n trustees. See Sampson, 304 Ill. App. 3d at 967.\n¶ 95 Even if the trial court here accepted the notion that board approval was required for the\n proper appointment of the Walsh Law Group, P.C., dismissal of count III with prejudice was\n\n 9\n According to the federal court’s August 18, 2022, order in Eberhardt v. Village of Tinley Park,\n No. 1:20-cv-01171 (N.D. Ill. Aug. 18, 2022), the court sanctioned Eberhardt for violating Rule 11 of\n the Federal Rules of Civil Procedure and ordered him to pay Walsh $26,951.22 in attorney fees, finding,\n inter alia, that Eberhardt neglected to cite a purchasing ordinance that negated his claims regarding the\n appointment of the Walsh Law Group, P.C., as outside counsel.\n\n - 24 -\n\f proper because the Village board of trustees ultimately ratified the appointment on May 19,\n 2020, through Village resolution No. 2020-R-058. The minutes of the May 19, 2020, Village\n board meeting establish that the Village board of trustees voted to ratify the appointment of\n the Walsh Law Group, P.C., and retain the firm for additional services. Resolution No. 2020-\n R-058 ratified the Village’s contract with the Walsh Law Group, P.C., and approved\n expenditures above $20,000, if necessary. Accordingly, even assuming the initial appointment\n of the Walsh Law Group, P.C., was defective, the Village board’s ratification cured any such\n defect. See Argo High School Council of Local 571 v. Argo Community High School District\n 217, 163 Ill. App. 3d 578 (1987); Board of Education School District No. 67 v. Sikorski, 214\n Ill. App. 3d 945, 952 (1991) (“However, we further determine that the Board’s violation of the\n Open Meetings Act was [an] inadequate basis to render the sales contract between the parties\n void ab initio and unenforceable, since the Board’s decision to reschedule public sale of the\n Hynes School property was ratified in subsequent public meetings of the Board.”); Lindsey v.\n Board of Education of Chicago, 127 Ill. App. 3d 413 (1984); Collinsville Community Unit\n School District No. 10 v. Witte, 5 Ill. App. 3d 600 (1972).\n¶ 96 Plaintiff contends that the board’s May 19, 2020, ratification of its engagement of the\n Walsh Law Group, P.C., was somehow improper. He argues that “Mayor Vandenberg has\n refused to motion to appoint Mr. Walsh as a Village attorney ***.” Putting aside that Walsh\n has never been a “Village Attorney” as codified by statute, Mayor Vandenberg recused himself\n from the discussion of resolution No. 2020-R-058, rather than “refused” to act. Mayor\n Vandenberg’s recusal left Trustee Glotz to act as mayor pro tem during the meeting and\n ultimately sign resolution No. 2020-R-058. The ratification of the Village’s agreement with\n the Walsh Law Group, P.C., did not violate any law or ordinance.\n¶ 97 We conclude that the trial court properly dismissed with prejudice, under section 2-619 of\n the Code, count III of plaintiff’s second amended complaint.\n\n¶ 98 III. CONCLUSION\n¶ 99 For the foregoing reasons, we affirm the judgment of the circuit court that dismissed\n plaintiff’s second amended complaint with prejudice.\n\n¶ 100 Affirmed.\n\n\n\n\n - 25 -\n\f"} {"dedup_key":"2024 IL App (4th) 210467-UB","dedup_key_type":"neutral_citation","neutral_citation":"2024 IL App (4th) 210467-UB","case_name":"Jason F. Woolsey v. The Illinois State Police","court_level":"Appellate","appellate_district":"4th","year":2024,"county":"Jersey","appellate_docket":"4-21-0467","circuit_docket":"19-CH-27","published":0,"authoring_justice":"Cavanagh","statute":["FOIA"],"exemptions_cited":["7.5(v)"],"public_body":"Illinois State Police","requesting_party":"Jason F. Woolsey","disposition":"reversed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court reversed the trial court's order, holding that section 7.5(v) of the Illinois Freedom of Information Act prohibits the Illinois State Police from disclosing Firearm Owners Identification Card information, even to the applicant themselves. Consequently, the court vacated the award of attorney fees and costs to the plaintiff.","best_text_source":"Court Opinions - FOIA/Woolsey v. The Illinois State Police, 2024 IL App (4th) 210467-UB.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:56.401375","site_category":"General Records Exemptions","date_decided":"2024-03-19","site_url":"/cases/2024%20IL%20App%20(4th)%20210467-UB/","text_url":"/case-text/2024%20IL%20App%20(4th)%20210467-UB.txt","full_text":" NOTICE 2024 IL App (4th) 210467-UB\n FILED\n This Order was filed under March 19, 2024\n Supreme Court Rule 23 and is NO. 4-21-0467\n Carla Bender\n not precedent except in the 4th District Appellate\n limited circumstances allowed IN THE APPELLATE COURT\n Court, IL\n under Rule 23(e)(1).\n OF ILLINOIS\n\n FOURTH DISTRICT\n\n\n JASON F. WOOLSEY, ) Appeal from the\n Plaintiff-Appellee, ) Circuit Court of\n v. ) Jersey County\n THE ILLINOIS STATE POLICE, ) No. 19CH27\n Defendant-Appellant. )\n ) Honorable\n ) Allison Lorton,\n ) Judge Presiding.\n\n\n PRESIDING JUSTICE CAVANAGH delivered the judgment of the court.\n Justices Harris and Steigmann concurred in the judgment.\n\n ORDER\n¶1 Held: The appellate court reversed, finding section 7.5(v) of the Illinois Freedom of\n Information Act prohibited, without exception, the Illinois State Police from\n disclosing Firearm Owners Identification Card information.\n\n¶2 On March 12, 2021, pursuant to the Illinois Freedom of Information Act (FOIA) (5\n\nILCS 140/1 et seq. (West 2020)), the trial court ordered the Illinois State Police (ISP) to provide\n\nplaintiff, Jason F. Woolsey, all documents relating to his application for a firearm owner’s\n\nidentification (FOID) card, made pursuant to the Firearm Owners Identification Card Act (FOID\n\nCard Act) (430 ILCS 65/0.01 et seq. (West 2020)). On July 22, 2021, the court awarded Woolsey\n\nhis attorney fees and costs pursuant to FOIA. ISP appealed, raising two issues: (1) whether a\n\npermanent injunction bars ISP from producing the records to Woolsey and (2) whether the\n\nlanguage of FOIA exempts the documents from disclosure. Originally, we affirmed the trial court’s\n\ndecision. See Woolsey v. The Illinois State Police, 2022 IL App (4th) 210467-U, ¶ 2. ISP petitioned\n\fthe supreme court for leave to appeal. On January 24, 2024, the supreme court denied ISP’s petition\n\nbut issued us the following order:\n\n “In the exercise of this Court’s supervisory authority, the Appellate Court, Fourth\n\n District, is directed to vacate its judgment in Woolsey v. Illinois State Police, case\n\n No. 4-21-0467 (06/09/22). The appellate court is directed to consider the effect of\n\n this Court’s opinion Hart v. The Illinois State Police, 2023 IL 128275, on the issue\n\n of whether the trial court erred in granting plaintiff’s motion for summary judgment\n\n and determine if a different result is warranted.” Woolsey v. The Illinois State\n\n Police, No. 128668 (Ill. Jan. 24, 2024) (supervisory order).\n\n¶3 Accordingly, we vacate our judgment in Woolsey. In light of our supreme court’s\n\ndecision in Hart v. Illinois State Police, 2023 IL 128275, we now reverse the trial court’s judgment,\n\nand we remand the case for further proceedings consistent with this order.\n\n¶4 I. BACKGROUND\n\n¶5 On November 8, 2018, Woolsey sought from ISP, pursuant to FOIA, documents\n\nrelated to his FOID card, including (1) his application, (2) any denial of the application, and\n\n(3) any document containing any information relating to any legal disability that would have made\n\nWoolsey ineligible for a FOID card. He also specifically limited his request to information about\n\nhis own FOID card and sought documents relating to ISP’s processing time for FOID appeals in\n\ngeneral. The request contained Woolsey’s name, city of residence, and social security number.\n\n¶6 ISP denied Woolsey’s request for the documents, citing section 7.5(v) of FOIA (5\n\nILCS 140/7.5(v) (West 2020)), exempting from disclosure, inter alia, the names and information\n\nof people who have applied for FOID cards. ISP further advised it did not possess documents\n\nrelated to the processing times of FOID appeals.\n\n\n\n\n -2-\n\f¶7 On June 5, 2019, Woolsey filed a single-count complaint in the trial court seeking\n\nproduction pursuant to FOIA of the same information and, in addition, his attorney fees and costs\n\nincurred in prosecuting the matter. Woolsey later filed a motion for summary judgment, citing as\n\nsupport a judgment entered by the Madison County circuit court in a factually similar case. ISP\n\nalso moved for summary judgment, asserting the same claims it makes herein, namely, the\n\ndisclosure is barred by a permanent injunction, and the plain language of FOIA excludes from\n\ndisclosure the information sought. The permanent injunction ISP relied upon was entered by the\n\nPeoria County circuit court in an action brought by the Illinois State Rifle Association. That\n\ninjunction provides ISP is prohibited from releasing “personally identifying information” of those\n\nwho have applied for FOID cards.\n\n¶8 The trial court held a hearing on the motions for summary judgment, at which time\n\nWoolsey withdrew his request for information relating to the processing times of FOID card\n\nappeals. On March 12, 2021, the court granted Woolsey summary judgment and denied ISP’s\n\ncross-motion. The court generally adopted the reasoning of the Madison County circuit court in\n\nthe matter referenced above. The court noted the exemption claimed by ISP did not “speak\n\nspecifically to an applicant seeking his/her own information from a public body.” Further, the court\n\nexplained the use of the terms “people” and “names,” being plural, suggested section 7.5(v) of\n\nFOIA did not apply to those seeking information about their own FOID card applications (id.).\n\nWithout explanation, the court found the permanent injunction did not prohibit ISP from releasing\n\nto Woolsey the information he sought.\n\n¶9 Subsequently, Woolsey filed a petition seeking his attorney fees and costs pursuant\n\nto FOIA. On July 22, 2021, the trial court awarded Woolsey $2046.45 in fees and costs and, on\n\nAugust 17, 2021, granted ISP’s motion to stay enforcement of the court’s orders pending appeal.\n\n\n\n\n -3-\n\f¶ 10 II. ANALYSIS\n\n¶ 11 We review the issue of statutory interpretation de novo. Sandholm v. Kuecker,\n\n2012 IL 111443, ¶ 41. Our review of a trial court’s entry of summary judgment is also de novo.\n\nId. The section of primary interest from FOIA states as follows:\n\n “Statutory exemptions. To the extent provided for by the statutes referenced below,\n\n the following shall be exempt from inspection and copying:\n\n ***\n\n (v) Names and information of people who have applied for or received\n\n Firearm Owner’s Identification Cards under the Firearm Owners Identification\n\n Card Act.” 5 ILCS 140/7.5(v) (West 2020).\n\n¶ 12 A. Hart\n\n¶ 13 In Hart, our supreme court granted ISP’s petition for leave to appeal from two\n\nconsolidated cases from the Appellate Court, Fifth District. Hart, 2023 IL 128275, ¶¶ 1-2. The\n\nplaintiffs in Hart, pursuant to FOIA, requested documents from ISP—like Woolsey had in the\n\npresent matter—related to their FOID card application and any legal disability regarding their\n\nineligibility for a FOID card. Id. ¶ 4. ISP denied the plaintiffs’ requests, citing section 7.5(v) of\n\nFOIA. Id. ¶ 5. The trial court in both plaintiffs’ cases entered judgment in favor of the plaintiffs\n\nand, ultimately, ordered ISP to produce the plaintiffs’ applications for a FOID card and relatedly\n\nrequested documents. Id. ¶¶ 8-11. The appellate court affirmed the trial court’s judgments. See\n\nHart v. Illinois State Police, 2022 IL App (5th) 190258, ¶ 34. The appellate court found the\n\nlegislature’s use of plural terms for “names” and “people,” as opposed to singular terms, meant\n\nsection 7.5(v) did not apply to an individual’s request for his or her own FOID card information.\n\nHart, 2023 IL 128275, ¶ 12. The appellate court also reasoned that section 7(1)(c) of FOIA\n\n\n\n\n -4-\n\fpermitted a person to consent to the disclosure of their own personal information contained within\n\npublic records. Id. ¶ 13; see 5 ILCS 140/7(1)(c) (West 2018). The appellate court rejected ISP’s\n\nargument that it could not verify whether a FOIA requester was in fact the same person requesting\n\nthe information being sought, and it found the permanent injunction issued by the Peoria County\n\ncircuit court of no moment. Hart, 2023 IL 128275, ¶¶ 14-15.\n\n¶ 14 Our supreme court, in Hart, found the legislature’s use of plural terms rather than\n\nsingular terms did not, “in itself, mean that a request for one’s own information is excluded from\n\nsection 7.5(v).” Id. ¶ 21. The Hart court noted section 7.5(v) did not permit a concealed carry\n\nlicense holder’s and applicant’s information to be disclosed unless authorized by the Firearm\n\nConcealed Carry Act (430 ILCS 66/1 et seq. (West 2018)). Hart, 2023 IL 128275, ¶ 22. The\n\nFirearm Concealed Carry Act provides a provision “for the release of one’s own denial and\n\nrevocation information pertaining to concealed carry licenses.” Id. The court explained, “If the\n\nlegislature had similarly intended for information regarding an individual’s FOID card to be\n\nsubject to disclosure under FOIA, it would have said so. It did not.” Id.\n\n¶ 15 The court in Hart also disagreed with the appellate court’s characterization of a\n\nFOID card application and subsequent denial letter as public records. Id. ¶ 24. The court found\n\nsuch information to be private information under section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West\n\n2018)) that is not subject to disclosure under section 7(1)(b) of FOIA (id. § 7(1)(b)) by state or\n\nfederal law or court order. Hart, 2023 IL 128275, ¶ 24.\n\n¶ 16 Lastly, the Hart court stated, “while the plaintiffs are not entitled to the disclosure\n\nof their requested information under FOIA, they may obtain their FOID card applications and\n\nrevocation letters through the Firearms Services Bureau, the division of ISP that processes FOID\n\ncard applications and determines FOID card eligibility.” Id. ¶ 25.\n\n\n\n\n -5-\n\f¶ 17 B. This Case\n\n¶ 18 On appeal, Woolsey argued (1) the Peoria County circuit court’s permanent\n\ninjunction was irrelevant and (2) section 7.5(v) of FOIA was inapplicable to his case. ISP argued\n\nthe plain language of FOIA barred ISP’s disclosure to Woolsey of information related to his FOID\n\ncard, and that the Peoria County circuit court’s permanent injunction prohibits the release as well.\n\nBased on our supreme court’s decision in Hart, we agree with the State on its first argument.\n\n¶ 19 In our original decision, we found Hart, 2022 IL App (5th) 190258, to be\n\npersuasive. This is no longer the case. When discussing the reasoning employed by the Fifth\n\nDistrict in Hart, our supreme court explained:\n\n “[When interpreting section 7.5(v)], the appellate court emphasized that the\n\n statute uses the plural terms ‘names’ and ‘people’ and, therefore must not exempt\n\n from disclosure an individual’s request for his or her own information. However,\n\n section 1.03 of the Statute on Statutes provides that ‘[w]ords importing the singular\n\n number may extend and be applied to several persons or things, and words\n\n importing the plural number may include the singular.’ [Citation.] This is a well-\n\n settled principle of statutory construction. [Citation.] Accordingly, contrary to the\n\n appellate court’s reasoning, the legislature’s use of the plural terms ‘names’ and\n\n ‘people’ does not, in itself, mean that a request for one’s own information is\n\n excluded from section 7.5(v).” Hart, 2023 IL 128275, ¶ 21.\n\n¶ 20 Therefore, we find section 7.5(v) does not permit ISP to release Woolsey’s FOID\n\ncard application and related documents pursuant to FOIA as he requested. Additionally, we find\n\nWoolsey’s FOID card information is not a public record subject to FOIA, nor do we find FOIA\n\nauthorizes an individual to consent to the release of his or her own FOID card information. Id.\n\n\n\n\n -6-\n\f¶ 24. Ultimately, Woolsey can obtain the information he seeks through the Firearms Services\n\nBureau; however, “FOIA is not the proper means for obtaining the requested information.” Id.\n\n¶ 25.\n\n¶ 21 Because we agree with ISP that section 7.5(v) of FOIA prohibits it from providing\n\nWoolsey his FOID application, denial letter, and information relating to any legal disability\n\npreventing ISP from issuing Woolsey a FOID card, we need not address its argument pertaining\n\nto the Peoria County circuit court’s permanent injunction. Because we are reversing the trial\n\ncourt’s grant of summary judgment for Woolsey, we also vacate the court’s subsequent order\n\nawarding Woolsey attorney fees and costs pursuant to FOIA.\n\n¶ 22 III. CONCLUSION\n\n¶ 23 For the foregoing reasons, we reverse the trial court’s judgment.\n\n¶ 24 Reversed; cause remanded.\n\n\n\n\n -7-\n\f"} {"dedup_key":"2024 IL App (4th) 240377-U","dedup_key_type":"neutral_citation","neutral_citation":"2024 IL App (4th) 240377-U","case_name":"McBroom v. Logan County Sheriff’s Office","court_level":"Appellate","appellate_district":"4th","year":2024,"county":"Logan","appellate_docket":"4-24-0377","circuit_docket":"24-MR-1","published":0,"authoring_justice":"DeArmond","statute":["FOIA"],"exemptions_cited":[],"public_body":"Logan County Sheriff’s Office","requesting_party":"Benjamin McBroom","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The trial court properly dismissed the plaintiff's FOIA complaint because most of the requested information did not constitute a public record, and the defendant's uncontroverted affidavit established that all existing responsive records had been provided. The appellate court further affirmed the trial court's finding that the defendant did not willfully or intentionally violate the Act.","best_text_source":"Court Opinions - FOIA/McBroom v. Logan County Sheriff’s Office, 2024 IL App (4th) 240377-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:56.609332","site_category":"Public Records Definition","date_decided":"2024-11-22","site_url":"/cases/2024%20IL%20App%20(4th)%20240377-U/","text_url":"/case-text/2024%20IL%20App%20(4th)%20240377-U.txt","full_text":" NOTICE 2024 IL App (4th) 240377-U\nThis Order was filed under FILED\nSupreme Court Rule 23 and is NO. 4-24-0377 November 22, 2024\nnot precedent except in the Carla Bender\nlimited circumstances allowed 4th District Appellate\nunder Rule 23(e)(1). IN THE APPELLATE COURT Court, IL\n OF ILLINOIS\n\n FOURTH DISTRICT\n\n BENJAMIN McBROOM, ) Appeal from the\n Plaintiff-Appellant, ) Circuit Court of\n v. ) Logan County\n THE LOGAN COUNTY SHERIFF’S OFFICE, ) No. 24MR1\n Defendant-Appellee. )\n ) Honorable\n ) William G. Workman,\n ) Judge Presiding.\n\n\n JUSTICE DeARMOND delivered the judgment of the court.\n Presiding Justice Cavanagh and Justice Knecht concurred in the judgment.\n\n ORDER\n\n ¶1 Held: The trial court properly dismissed plaintiff’s complaint under the Illinois Freedom\n of Information Act (FOIA) because most of the information sought by plaintiff\n was not a “public record” kept by the public body, and the uncontroverted\n affidavit of defendant’s FOIA officer established all applicable public records\n were provided.\n\n ¶2 In January 2024, plaintiff, Benjamin McBroom, who was then a pretrial detainee\n\n at the Logan County jail, filed a complaint alleging defendant, the Logan County Sheriff’s\n\n Office, violated the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West\n\n 2022)), by failing to comply with his “Request for Preservation” of documents related to\n\n nutritional information regarding food served at the jail. In particular, plaintiff sought recipes,\n\n portioning guidelines, and information about the calculation of nutritional values for dishes\n\n prepared by detainees and staff. Defendant produced 10 weekly menus with handwritten caloric\n\finformation for each menu item. Plaintiff alleged the production was untimely and insufficient to\n\nmeet his FOIA request.\n\n¶3 The trial court granted defendant’s motion dismiss, finding (1) plaintiff did not\n\nseek “public records” as defined by FOIA and instead sought the preservation of certain items\n\nand preparation of data, which was improper under FOIA, (2) defendant did not deny plaintiff’s\n\nrequest and tendered the records in its possession, (3) tendering records did not waive\n\ndefendant’s argument there was never a valid FOIA request, and (4) even if defendant’s response\n\nwas untimely, there was (a) no relief the court could provide and (b) no willful or intentional lack\n\nof compliance by defendant. On appeal, plaintiff argues the court wrongly dismissed his\n\ncomplaint. We affirm.\n\n¶4 I. BACKGROUND\n\n¶5 In a document dated January 15, 2023, plaintiff submitted a “Logan County\n\nSheriff’s Dept. Inmate Request/Grievance Form,” stating he was “requesting to talk with:\n\nFOIA/Legal/Dietary” regarding a “Request for Preservation.” On the form, plaintiff wrote:\n\n “Pursuant to Federal law, you are hereby instructed to preserve certain items of\n\n evidence relevant to forthcoming litigation before the Central District US Court of\n\n Illinois. Your failure to preserve such evidence against spoliation—including by\n\n routine or inadvertent deletion or unavailability—will entitle me to a favorable\n\n presumption by the finder-of-fact that any evidence so despoiled had a tendency\n\n to prove the claims asserted. This applies to the specific items requested, and\n\n collateral evidence related to the same claims, and all future Requests for\n\n Preservation in this or any other potential suits.”\n\n\n\n\n -2-\n\f¶6 The record indicates plaintiff also attached a list of items sought, including\n\nrecipes and portioning guidelines for all food prepared by detainees and staff, including any\n\ncalculation of nutritional value “that has or will be produced,” the date the calculation was made,\n\nthe person responsible for the calculation, any nutritional requirements relied on, and anyone\n\napproving or overseeing the calculation. Plaintiff also sought actual menus reflecting food served\n\nto detainees for the past two years.\n\n¶7 On February 7, 2023, a FOIA officer responded and referred plaintiff to “County\n\nJail Standards, 20 IL Admin Code CH 1, 701.110(f)(a)(1) for caloric information” and attached\n\n10 weekly menus with handwritten calories for each menu item included. At the bottom of each\n\nwas written “menu subject to change.” In some instances, dessert on the menu was listed as\n\n“cook’s choice.” The County Jail Standards do not include a subsection (f), but subsection (a)(1)\n\nprovides food must be of sufficient nutritional value and provide a minimum of 1800 to 2000\n\ncalories for adults per day. 20 IL Adm. Code 701.110(a)(1) (eff. Oct. 1, 2014). The response\n\nindicated the request was received by the FOIA officer on February 1, 2023.\n\n¶8 On January 8, 2024, plaintiff filed a complaint for injunctive and declaratory\n\nrelief, requesting the trial court require defendant to make a full disclosure of the records\n\nrequested. Plaintiff alleged the menus provided smelled of “fresh Sharpie” and were newly\n\ncreated in response to the request. He also alleged the response failed to disclose (1) any sources\n\nof information relied on in making the nutritional calculations, (2) recipes or portioning\n\nguidelines, (3) information pertaining to dessert items, and (4) alternate breakfast items. He\n\nrequested the court require defendant to provide (1) all recipes and portioning guidelines for\n\nmeals, (2) all United States Department of Agriculture (USDA) nutritional information available\n\non food packaging used in the preparation of meals, and (3) any “sub-calculations” used in\n\n\n\n\n -3-\n\farriving at the caloric values provided. In the alternative, to the extent the court determined the\n\nitems sought did not exist, he sought a declaratory judgment stating that fact.\n\n¶9 On February 16, 2024, defendant moved to dismiss the complaint under section\n\n2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2022)), alleging\n\n(1) plaintiff did not make a FOIA request for public records when he sought preservation of\n\ndocuments, (2) plaintiff’s request was not denied, and defendant was not required to create\n\nrecords that did not exist, and (3) the trial court was not authorized to rule that certain documents\n\ndid not exist.\n\n¶ 10 Defendant also separately moved to dismiss under section 2-619 of the Code (735\n\nILCS 5/2-619 (West 2022)), alleging it provided plaintiff with all records in its possession.\n\nDefendant attached an affidavit from its FOIA officer, averring she received the request on\n\nFebruary 1, 2023, and, on February 7, 2023, provided plaintiff with the menus. She averred\n\ndefendant had no additional records relevant to the request. Defendant alleged the FOIA officer’s\n\naffidavit refuted plaintiff’s claims. Defendant failed to verify the motion to dismiss. On February\n\n23, 2024, defendant filed an identical new motion to dismiss that was verified.\n\n¶ 11 Plaintiff filed a motion to strike, alleging he received the first motion to dismiss\n\nwithout proof of service or a notice of appearance by defendant’s counsel. He also argued the\n\nmotion lacked merit and the FOIA officer’s affidavit was insufficient to warrant a dismissal.\n\n¶ 12 On February 26, 2024, the trial court held a hearing on the matter. The record\n\nshows the hearing was recorded but had no court reporter. There is no transcript of the hearing in\n\nthe record. After the appeal was filed, defendant moved to submit a proposed substitute report of\n\nproceedings, noting plaintiff had failed to provide one. That report provided the basic procedural\n\nhistory of the case, but it did not include specific details of the evidence or arguments presented\n\n\n\n\n -4-\n\fat the hearing. There is no order approving the report in the record, but a docket entry states the\n\nparties agreed to it, and it was filed with this court.\n\n¶ 13 On February 28, 2024, the trial court entered a written order denying the motion\n\nto strike and dismissing the complaint. The court wrote plaintiff acknowledged in court he was in\n\nreceipt of defendant’s motion to dismiss and prepared to argue the motion. The court stated\n\nplaintiff did not request a continuance and thus suffered no prejudice. As to the merits of the\n\nmotion to dismiss, the court found (1) plaintiff did not seek “public records” as defined by FOIA\n\nand instead sought the preservation of certain items and preparation of data, which was improper\n\nunder FOIA, (2) defendant did not deny plaintiff’s request and tendered the records in its\n\npossession, (3) tendering records did not waive defendant’s argument there was never a valid\n\nFOIA request, and (4) even if defendant’s response was untimely, there was no relief the court\n\ncould provide, and there was no willful or intentional lack of compliance by defendant.\n\n¶ 14 This appeal followed.\n\n¶ 15 II. ANALYSIS\n\n¶ 16 On appeal, plaintiff contends the trial court erred in dismissing his complaint. He\n\nargues (1) he submitted a valid FOIA request, (2) the FOIA officer’s response waived or\n\nforfeited any argument the request was invalid, (3) the request did not require the creation of new\n\nrecords, (4) the request was improperly denied by an untimely response and failure to provide all\n\nresponsive documents, (5) he sought “public records,” (6) the FOIA officer’s affidavit was\n\ninsufficient, and (7) the failure to produce items was willful and intentional. Plaintiff also sought\n\ncivil penalties.\n\n¶ 17 A motion to dismiss pursuant to section 2-615 attacks the sufficiency of the\n\ncomplaint and raises the question of whether the complaint states a claim upon which relief can\n\n\n\n\n -5-\n\fbe granted. Burton v. Airborne Express, Inc., 367 Ill. App. 3d 1026, 1029, 857 N.E.2d 707, 711\n\n(2006). A section 2-619 motion to dismiss admits the legal sufficiency of the plaintiff’s\n\ncomplaint but raises defects, defenses, or other affirmative matters that appear on the face of the\n\ncomplaint or that are established by external submissions acting to defeat the complaint’s\n\nallegations. Burton, 367 Ill. App. 3d at 1029. The resolution of either motion involves only a\n\nquestion of law, and therefore this court’s review is de novo. Burton, 367 Ill. App. 3d at 1030.\n\n¶ 18 FOIA governs the inspection of public records. 5 ILCS 140/1.2 (West 2022). The\n\npurpose of FOIA “is ‘to open governmental records to the light of public scrutiny.’ ” Watkins v.\n\nMcCarthy, 2012 IL App (1st) 100632, ¶ 13, 980 N.E.2d 733 (quoting Bowie v. Evanston\n\nCommunity Consolidated School District No. 65, 128 Ill. 2d 373, 378, 538 N.E.2d 557, 559\n\n(1989)). Under FOIA, public records are presumed to be open and accessible. Hosey v. City of\n\nJoliet, 2019 IL App (3d) 180118, ¶ 9, 124 N.E.3d 1075. FOIA must be liberally construed to\n\nachieve that goal. Hosey, 2019 IL App (3d) 180118, ¶ 9.\n\n¶ 19 Unless subject to exemption, “[e]ach public body shall make available to any\n\nperson for inspection or copying all public records.” 5 ILCS 140/3(a) (West 2022). A FOIA\n\nrequest must “reasonably identify a public record and not general data, information, or statistics.”\n\nChicago Tribune Co. v. Department of Financial & Professional Regulation, 2014 IL App (4th)\n\n130427, ¶ 33, 8 N.E.3d 11. FOIA does not create an independent duty upon a public body to\n\nmaintain or prepare a public record that it is not already legally required to keep, and “[t]he\n\nnonexistence of requested documents is a cognizable affirmative defense” to a FOIA claim.\n\n(Internal quotation marks omitted.) Barner v. Fairburn, 2019 IL App (3d) 180742, ¶ 12, 134\n\nN.E.3d 987.\n\n\n\n\n -6-\n\f¶ 20 “When a public body receives a proper request for information, it must comply\n\nwith that request unless one of the narrow statutory exemptions applies.” Lieber v. Board of\n\nTrustees of Southern Illinois University, 176 Ill. 2d 401, 407, 680 N.E.2d 374, 377 (1997). “In\n\nthe event a public body asserts that a record is exempt from such disclosure, the public body\n\nbears the burden of proving by clear and convincing evidence that the record is exempt.”\n\nMancini Law Group, P.C. v. Schaumburg Police Department, 2021 IL 126675, ¶ 16, 190 N.E.3d\n\n744. “Where the public body claims that a requested document falls within one of these\n\nspecifically enumerated categories and is able to prove that claim, no further inquiry by the court\n\nis necessary.” Lieber, 176 Ill. 2d at 408.\n\n¶ 21 A. Proper FOIA Request\n\n¶ 22 Plaintiff first argues the trial court erred in determining his request was one for the\n\npreservation of documents instead of a proper FOIA request to inspect or copy public records.\n\n¶ 23 A formal request for public records is a prerequisite to bringing a suit under\n\nFOIA. Harper v. Health Care Service Corp., 2023 IL App (1st) 220078, ¶ 47, 228 N.E.3d 931.\n\nFOIA provides, in relevant part, the following:\n\n “Requests for inspection or copies shall be made in writing and directed to the\n\n public body. Written requests may be submitted to a public body via personal\n\n delivery, mail, telefax, or other means available to the public body. A public body\n\n may honor oral requests for inspection or copying. A public body may not require\n\n that a request be submitted on a standard form or require the requester to specify\n\n the purpose for a request, except to determine whether the records are requested\n\n for a commercial purpose or whether to grant a request for a fee waiver. All\n\n\n\n\n -7-\n\f requests for inspection and copying received by a public body shall immediately\n\n be forwarded to its [FOIA] officer or designee.” 5 ILCS 140/3(c) (West 2022).\n\n¶ 24 Here, while plaintiff stated his request as a “Request for Preservation” and noted\n\nfederal law, he also directed his request to “FOIA” and asked for specific documents allegedly\n\nmaintained by defendant. His request was then forwarded to defendant’s FOIA officer. Thus, it is\n\nclear defendant was not confused by the request and treated it as a FOIA request. Given that\n\nFOIA must be liberally construed to achieve its goal of providing the public with easy access to\n\ngovernment information and FOIA’s prohibition of requiring a specific form for the request, we\n\nfind the form of plaintiff’s request was sufficient. To hold otherwise, especially when defendant\n\nalready interpreted the request as one under FOIA, would defeat the purpose and liberal\n\nconstruction of FOIA.\n\n¶ 25 B. Public Records\n\n¶ 26 Plaintiff next argues his request sought public records and did not require\n\ndefendant to create new records.\n\n¶ 27 Under FOIA, “public records” are defined as\n\n “all records, reports, forms, writings, letters, memoranda, books, papers, maps,\n\n photographs, microfilms, cards, tapes, recordings, electronic data processing\n\n records, electronic communications, recorded information and all other\n\n documentary materials pertaining to the transaction of public business, regardless\n\n of physical form or characteristics, having been prepared by or for, or having been\n\n or being used by, received by, in the possession of, or under the control of any\n\n public body.” 5 ILCS 140/2(c) (West 2022).\n\n\n\n\n -8-\n\f¶ 28 A FOIA request must “reasonably identify a public record and not general data,\n\ninformation, or statistics.” Chicago Tribune Co., 2014 IL App (4th) 130427, ¶ 33. Furthermore,\n\nFOIA “does not compel the agency to provide answers to questions posed by the inquirer.”\n\nKenyon v. Garrels, 184 Ill. App. 3d 28, 32, 540 N.E.2d 11, 13 (1989). As previously noted,\n\nFOIA does not create an independent duty upon a public body to maintain or prepare a public\n\nrecord that it is not already legally required to keep, and “[t]he nonexistence of requested\n\ndocuments is a cognizable affirmative defense.” (Internal quotation marks omitted.) Barner,\n\n2019 IL App (3d) 180742, ¶ 12.\n\n¶ 29 Here, plaintiff sought recipes and portioning guidelines for all food prepared by\n\ndetainees and staff, including any calculation of nutritional value “that has or will be produced,”\n\nthe date the calculation was made, the person responsible for the calculation, any nutritional\n\nrequirements relied on, and anyone approving or overseeing the calculation. He also sought\n\nactual menus reflecting food served to detainees for the past two years.\n\n¶ 30 We agree with defendant and the trial court that, to the extent plaintiff sought\n\nnutritional calculations “that has or will be produced,” external data relied on in formulating\n\ndocuments, information as to who made nutritional calculations or oversaw that activity, or\n\ninformation regarding the dates the activity occurred, he was not requesting public records.\n\nInstead, he was seeking general data or information or was seeking answers to questions or the\n\ncreation of documents with nutritional calculations.\n\n¶ 31 In his complaint, plaintiff also sought USDA nutritional label information from\n\nfood packaging. However, the record does not reflect plaintiff sought such materials in his FOIA\n\nrequest. Thus, defendant cannot be held liable for not producing it. Further, such information is\n\n\n\n\n -9-\n\frelated to third party data allegedly used in nutritional calculations rather than public documents\n\nheld by defendant.\n\n¶ 32 C. Production of Menus\n\n¶ 33 Plaintiff next contends defendant improperly complied with his request by failing\n\nto respond in a timely manner and by failing to provide all available documents. Defendant\n\nargues the FOIA officer’s affidavit shows it disclosed all the documents it had and, once it had\n\ndone so, any argument concerning timeliness is moot. Meanwhile, plaintiff responds the affidavit\n\nwas insufficient under Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013) because it was\n\nconclusory and did not describe the extent of any search for records or define the FOIA officer’s\n\ndefinition of relevant records.\n\n¶ 34 Section 2-619(a)(9) of the Code allows for the involuntary dismissal of a claim\n\nwhen it is “barred by other affirmative matter avoiding the legal effect of or defeating the claim.”\n\n735 ILCS 5/2-619(a)(9) (West 2022). An “affirmative matter” is “something in the nature of a\n\ndefense that negates the cause of action completely.” (Internal quotation marks omitted.)\n\nWatkins, 2012 IL App (1st) 100632, ¶ 11. “If the ‘affirmative matter’ asserted is not apparent on\n\nthe face of the complaint, the motion must be supported by affidavit.” Kedzie & 103rd Currency\n\nExchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 735 (1993). “By presenting\n\nadequate affidavits supporting the asserted defense [citation], the defendant satisfies the initial\n\nburden of going forward on the motion.” Hodge, 156 Ill. 2d at 116. The burden then shifts to the\n\nplaintiff.\n\n¶ 35 To defeat a properly supported motion to dismiss under section 2-619(a)(9), the\n\nplaintiff must establish the defense is unfounded or requires the resolution of an essential\n\nelement of material fact before it is proven. Hodge, 156 Ill. 2d at 116. “The plaintiff may do so\n\n\n\n\n - 10 -\n\fby affidavit[ ] or other proof.” (Internal quotation marks omitted.) Hodge, 156 Ill. 2d at 116. “A\n\ncounteraffidavit is necessary, however, to refute evidentiary facts properly asserted by affidavit\n\nsupporting the motion else the facts are deemed admitted.” Hodge, 156 Ill. 2d at 116. “If, after\n\nconsidering the pleadings and affidavits, the trial judge finds that the plaintiff has failed to carry\n\nthe shifted burden of going forward, the motion may be granted and the cause of action\n\ndismissed.” Hodge, 156 Ill. 2d at 116. We review a trial court’s dismissal of a complaint under\n\nsection 2-619(a)(9) de novo. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361, 919 N.E.2d\n\n929, 932 (2009).\n\n¶ 36 Rule 191(a) sets forth the requirements for affidavits submitted in favor of\n\nmotions under section 2-619. Ill. S Ct. R. 191(a) (eff. Jan. 4, 2013). The rule requires, in part,\n\nthat affidavits be made on the personal knowledge of the affiant and set forth with particularity\n\nthe facts upon which the claim, counterclaim, or defense is based. Ill. S. Ct. R. 191(a) (eff. Jan. 4,\n\n2013). “[A]ffidavits that are conclusory and fail to state facts with particularity do not strictly\n\ncomply with Rule 191(a) and may be stricken.” Cordeck Sales, Inc. v. Construction Systems,\n\nInc., 382 Ill. App. 3d 334, 383, 887 N.E.2d 474, 521 (2008). “However, it is the burden of the\n\nparty objecting to the sufficiency of a Rule 191(a) affidavit to challenge the affidavit in the trial\n\ncourt and obtain a ruling thereon.” Cordeck, 382 Ill. App. 3d at 383. Failure to do so results in\n\nforfeiture. See Cordeck, 382 Ill. App. 3d at 383. The sufficiency of affidavits cannot be tested for\n\nthe first time on appeal where no objection was made in the trial court. Cordeck, 382 Ill. App. 3d\n\nat 383 (quoting Arnett v. Snyder, 331 Ill. App. 3d 518, 523, 769 N.E.2d 943, 947 (2001)).\n\n¶ 37 As the appellant, plaintiff “has the burden to present a sufficiently complete\n\nrecord of the proceedings at trial to support a claim of error.” Foutch v. O’Bryant, 99 Ill. 2d 389,\n\n391, 459 N.E.2d 958, 959 (1984). “[I]n the absence of such a record on appeal, it will be\n\n\n\n\n - 11 -\n\fpresumed that the order entered by the trial court was in conformity with law and had a sufficient\n\nfactual basis.” Foutch, 99 Ill. 2d at 392.\n\n¶ 38 Here, defendant provided the FOIA officer’s affidavit establishing there were no\n\nadditional records relevant to the request. While plaintiff alleged the affidavit was insufficient in\n\nhis motion to strike, the record does not show plaintiff presented that argument at the hearing on\n\nthe motion, and nothing shows he provided any counteraffidavit or other evidence to counter the\n\nFOIA officer’s affidavit. Thus, the record fails to establish plaintiff met his burden to challenge\n\nthe affidavit. Absent such a record, we presume the trial court’s determination was in conformity\n\nwith law and had a sufficient factual basis. See Foutch, 99 Ill. 2d at 392.\n\n¶ 39 Plaintiff also contends the menus, which he alleged smelled like “fresh Sharpie,”\n\nwere newly created in response to his request, and thus, are suspect. However, the record does\n\nnot show plaintiff presented evidence at the hearing to support that assertion. Further, even if the\n\nrecords were newly created, while FOIA does not require the defendant to create records to be\n\nresponsive to a FOIA request, it does not prohibit the defendant from doing so.\n\n¶ 40 D. Timeliness\n\n¶ 41 Plaintiff also contends defendant failed to provide a timely response to his\n\nrequest. Under FOIA, “[e]ach public body shall, promptly, either comply with or deny a request\n\nfor public records within 5 business days after its receipt of the request, unless the time for\n\nresponse is properly extended.” 5 ILCS 140/3(d) (West 2022).\n\n¶ 42 Here, the FOIA officer received the request on Wednesday, February 1, 2023, and\n\nresponded on Tuesday, February 7, 2023, which was within five business days. “A reviewing\n\ncourt may take judicial notice of the days of the week as they correspond to dates of the month.”\n\nPeople v. Gill, 2018 IL App (3d) 150594, ¶ 104 n.8, 103 N.E.3d 459. Plaintiff contends the date\n\n\n\n\n - 12 -\n\fshould be based on when the agency received the request instead of the date the FOIA officer\n\nobtained the request, and he asserts that was on January 16, 2023, which is reflected on the form\n\nhe submitted by a correctional officer’s signature stating the request was picked up.\n\n¶ 43 We do not agree a correctional officer merely picking up a request constitutes\n\nreceipt by the public body. However, even if we deemed the response untimely, the trial court\n\ncorrectly held it could not grant relief because, as previously discussed, defendant complied with\n\nthe request. “[O]nce a public body provides the information requested under FOIA, even after a\n\nlengthy delay, the controversy over the public body’s production of [those] documents ceases to\n\nexist,” and a plaintiff’s continued claim for the production of that information is moot. See\n\nRoxana Community Unit School District No. 1 v. Environmental Protection Agency, 2013 IL\n\nApp (4th) 120825, ¶ 41, 998 N.E.2d 961; Duncan Publishing, Inc. v. City of Chicago, 304 Ill.\n\nApp. 3d 778, 782, 709 N.E.2d 1281, 1285 (1999); see also Turner v. Joliet Police Department,\n\n2019 IL App (3d) 170819, ¶¶ 12-13, 123 N.E.3d 1147 (affirming dismissal of FOIA claim as\n\nmoot under section 2-619(a)(9) where plaintiff had received the information he had requested\n\nfrom the Joliet Police Department). Thus, any continued claim by plaintiff to the production of\n\nthe documents already provided to him would be moot and would have been properly dismissed\n\nunder section 2-619(a)(9). Turner, 2019 IL App (3d) 170819, ¶ 13.\n\n¶ 44 Finally, plaintiff argues the untimely denial of his request was intentional and\n\nwillful, and he seeks attorney fees and civil penalties. FOIA allows civil penalties when an\n\nagency’s failure to comply is willful or intentional. 5 ILCS 140/11(j) (West 2022). When a\n\nresponse to a FOIA request is untimely, requests for attorney fees and civil penalties remain\n\nviable, even when the agency complied with the request. See Roxana, 2013 IL App (4th)\n\n120825, ¶¶ 41-42.\n\n\n\n\n - 13 -\n\f¶ 45 Here, however, plaintiff, who has appeared pro se throughout the proceedings,\n\nmade no showing he incurred attorney fees. Meanwhile, he did not specifically seek civil\n\npenalties in his complaint, and nothing shows he asked the trial court for such relief at the\n\nhearing or presented evidence defendant willfully and intentionally failed to comply with his\n\nrequest. Nevertheless, the court specifically found defendant did not willfully or intentionally fail\n\nto comply. The record does not refute that finding. Under Foutch, we presume the court’s\n\ndetermination was in conformity with law and had a sufficient factual basis. Foutch, 99 Ill. 2d at\n I\n392. Accordingly, plaintiff’s argument lacks merit.\n\n¶ 46 III. CONCLUSION\n\n¶ 47 For the reasons stated, the judgment of the trial court is affirmed.\n\n¶ 48 Affirmed.\n\n\n\n\n - 14 -\n\f"} {"dedup_key":"2024 IL App (5th) 180483-U","dedup_key_type":"neutral_citation","neutral_citation":"2024 IL App (5th) 180483-U","case_name":"Nathanael Harsy v. Perry County Sheriff’s Office","court_level":"Appellate","appellate_district":"5th","year":2024,"county":"Perry","appellate_docket":"5-18-0483","circuit_docket":"17-MR-6","published":0,"authoring_justice":"Boie","statute":["FOIA"],"exemptions_cited":[],"public_body":"Perry County Sheriff’s Office","requesting_party":"Nathanael Harsy","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The court affirmed the dismissal of the plaintiff's FOIA complaint as moot because the defendant supplemented its responses, provided explanations for withheld records, and refunded overcharges. The court further held that the circuit court's finding that the defendant did not act willfully or intentionally in its FOIA compliance was not against the manifest weight of the evidence.","best_text_source":"Court Opinions - FOIA/Harsy v. Perry County Sheriff's Office, 2024 IL App (5th) 180483-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:56.930280","site_category":"FOIA Response Process","date_decided":"2024-06-03","site_url":"/cases/2024%20IL%20App%20(5th)%20180483-U/","text_url":"/case-text/2024%20IL%20App%20(5th)%20180483-U.txt","full_text":" 2024 IL App (5th) 180483-U\n NOTICE\n NOTICE\n Decision filed 06/03/24. The\n This order was filed under\n text of this decision may be NO. 5-18-0483\n Supreme Court Rule 23 and is\n changed or corrected prior to\n not precedent except in the\n the filing of a Petition for IN THE limited circumstances allowed\n Rehearing or the disposition of\n under Rule 23(e)(1).\n the same.\n APPELLATE COURT OF ILLINOIS\n\n FIFTH DISTRICT\n______________________________________________________________________________\n\nNATHANAEL HARSY, ) Appeal from the\n ) Circuit Court of\n Plaintiff-Appellant, ) Perry County.\n )\nv. ) No. 17-MR-6\n )\nPERRY COUNTY SHERIFF’S OFFICE, ) Honorable\n ) Thomas B. Cannady,\n Defendant-Appellee. ) Judge, presiding.\n______________________________________________________________________________\n\n JUSTICE BOIE delivered the judgment of the court.\n Justices Welch and Cates concurred in the judgment.\n\n ORDER\n\n¶1 Held: We affirm the judgment of the circuit court where the circuit court’s finding\n that the defendant did not act willfully or intentionally was not against the\n manifest weight of the evidence and the dismissal of the plaintiff’s complaint as\n moot was not in error.\n\n¶2 On January 23, 2017, Nathanael Harsy filed a four count complaint in the circuit court of\n\nPerry County pursuant to the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq.\n\n(West 2016)). Harsy sought an injunction from the circuit court commanding the defendant, the\n\nPerry County Sheriff’s Office (PCSO), to disclose disputed records; provide an explanation for\n\nredacted documents; provide an explanation for omissions and removal of pages not provided to\n\nHarsy; and an order awarding the pro se Harsy reimbursements for the overcharging of copying\n\nfees. Harsy’s complaint also requested that the circuit court order the defendant to pay $2500 for\n\n\n\n 1\n\feach occurrence that it willfully and intentionally failed to comply with FOIA or made FOIA\n\nresponses in bad faith pursuant to section 11(j) of FOIA (id. § 11(j)).\n\n¶3 On February 26, 2018, the circuit court dismissed Harsy’s complaint with prejudice, and\n\nfurther denied Harsy’s request to impose any statutory penalties, grant injunctive relief, or award\n\nattorney fees and/or costs. On March 28, 2018, Harsy filed a motion to reconsider, rehear, modify,\n\nand vacate the circuit court’s order of February 26, 2018, dismissing Harsy’s claims and Harsy’s\n\nmotion for the defendant to provide an index of the records to which access has been denied, which\n\nwas denied by the circuit court on September 10, 2018. This appeal followed. For the reasons\n\nbelow, we affirm the judgment of the circuit court.\n\n¶4 I. BACKGROUND\n\n¶5 On December 11, 2016, Harsy sent a FOIA request to the defendant requesting “a printed\n\ntranscript of all conversations between the PCSO police officers and police dispatch” on 23\n\nseparate dates in November and December 2016. On December 14, 2016, Sheriff Steve Bareis of\n\nPerry County sent Harsy an email acknowledging the receipt of Harsy’s FOIA request and\n\ninforming Harsy that the requested information would take some time to compile. In lieu of\n\nsending Harsy a document specifically identifying the statutory basis for any redactions that would\n\nbe made, Sheriff Bareis’s email also included his office’s standardized policy listing the types of\n\ninformation that could be redacted from the documents produced pursuant to FOIA, and the 14\n\ndifferent reasons for exemptions from producing the documents. Sheriff Bareis sent another email\n\nto Harsy on December 14, 2016, informing Harsy that he had “printed all the logs per [Harsy’s]\n\nrequest,” that the total cost of producing the record was $106.20, and that the records would be\n\navailable for pick up on December 20, 2016.\n\n¶6 On December 16, 2016, Sheriff Bareis sent another email to Harsy updating the total cost\n\nof Harsy’s December 11, 2016, FOIA request to $119.20. The additional $13 was for “materials.”\n\n 2\n\fSheriff Bareis’s email further stated that if Harsy failed to pick up the documents on December 20,\n\n2016, then a bill would be sent to him for the expenses indicated. Harsy responded to Sheriff\n\nBareis’s December 16, 2016, email, and pointed out mistakes in the defendant’s FOIA policy,\n\nincluding, pursuant to section 3(d) of FOIA (id. § 3(d)), that FOIA responses are to be made within\n\nfive business days, whereas the defendant’s FOIA policy stated that the defendant would respond\n\nto all FOIA requests within seven working days of the request. Sheriff Bareis responded to Harsy’s\n\nemail on December 16, 2016, stating, “[f]ive business days. Weekends do not count to this five\n\ndays.”\n\n¶7 At a hearing on October 12, 2017, counsel for the defendant stated that in response to\n\nHarsy’s December 11, 2016, FOIA request, Sheriff Bareis had accessed the dispatch logs; set\n\nparameters for a search; searched the documents; and then made those documents available to\n\nHarsy with redactions. Those documents included communications between dispatch with Perry\n\nCounty deputies and communications between dispatch and ambulance personnel. According to\n\nSheriff Bareis’s sworn affidavit notarized on May 18, 2017, Harsy received more records than he\n\nasked for because “[w]hen I initially compiled these records to respond to [Harsy’s] requests, I\n\nmistakenly included conversations between dispatch and ambulance personnel in addition to\n\nconversations between police and police dispatch.” Sheriff Bareis charged Harsy 10 cents per page\n\nfor Harsy’s copy and 10 cents per page for the copy retained by Sheriff Bareis, after the first 50\n\ncopies, which were free. Sheriff Bareis also charged Harsy for markers that had to be purchased\n\nand used to make redactions.\n\n¶8 According to Harsy’s complaint, on December 21, 2016, Harsy picked up the documents\n\nfrom his December 11, 2016, FOIA request from the defendant, and dropped off another FOIA\n\nrequest to the defendant requesting “a printed transcript of all conversations between the [PCSO]\n\npolice officers and police dispatch” on 18 additional dates during the months of August, October,\n\n 3\n\fand December 2016. On December 22, 2016, Sheriff Bareis emailed Harsy advising him that his\n\nDecember 21, 2016, FOIA request would be completed by December 30, 2016. In response to\n\nHarsy’s December 21, 2016, FOIA request, Sheriff Bareis repeated the process used to answer\n\nHarsy’s December 11, 2016, FOIA request as stated above.\n\n¶9 On January 2, 2017, Harsy picked up the documents from his December 21, 2016, FOIA\n\nrequest from the defendant. According to Harsy’s complaint, at this time, Harsy informed the\n\ndefendant that pages were missing and that he wanted explanations for the redactions that were\n\nmade on the documents produced in response to his December 11, 2016, FOIA request. The\n\ndefendant allegedly informed Harsy that it had to make redactions for privacy reasons. Harsy told\n\nthe defendant that he understood this, but that he wanted explanations for the redactions.\n\nAccording to Harsy, a female staff member of the PCSO responded that she “did not know because\n\nthis was everything.” On January 11, 2017, Harsy emailed Sheriff Bareis informing him that when\n\nHarsy picked up his December 11 and 21, 2016, FOIA requests, the defendant had failed to include\n\nany explanation for the redactions that were made therein, which is required by law, and requested\n\nthat he be able to pick up a document containing the explanations regarding the redactions from\n\nthe defendant. Sheriff Bareis replied to Harsy’s email on January 11, 2017, indicating that Harsy\n\nwas previously given a copy of the defendant’s policy with exemptions and citations to the legal\n\nbasis contained therein.\n\n¶ 10 On January 23, 2017, Harsy filed a four-count complaint under FOIA (5 ILCS 140/1 et seq.\n\n(West 2016)), seeking an injunction from the circuit court commanding the defendant to disclose\n\ndisputed records; an explanation for the redactions made within the documents; an explanation for\n\nthe omissions and removal of pages not provided to Harsy; and an order awarding Harsy\n\nreimbursements for the alleged overcharging of copying fees. Harsy’s complaint also requested\n\nthat the circuit court order the defendant to pay $2500 for each alleged occurrence that it willfully\n\n 4\n\fand intentionally failed to comply with FOIA or made FOIA responses in bad faith pursuant to\n\nsection 11(j) of FOIA (id. § 11(j)). Specifically, count 1 of Harsy’s complaint sought an order from\n\nthe circuit court for the disclosure of the missing records or the exemption basis for the\n\nnondisclosure of those records, and clear and convincing evidence for the redactions made to the\n\nrecords that were disclosed in response to Harsy’s December 11 and 21, 2016, FOIA requests.\n\nCount 1 further sought “for each occurrence of willful and intentional violations in responding to\n\nplaintiff’s FOIA request or responses that are otherwise in bad faith, a penalty of $2500.” Harsy\n\nalleged, inter alia, that:\n\n “[T]he fact that plaintiff pointed out to [Sheriff Bareis] that his FOIA policy of 7 day[s]\n\n was incorrect and [Sheriff Bareis] corrected this policy by always responding to plaintiff’s\n\n requests within 5 days shows that [Sheriff Bareis] knew that any reliance on the policy he\n\n provided to plaintiff was a reliance on policies that were based on laws that were 6 years\n\n old, the fact that plaintiff requested explanations for the redactions and omissions once in\n\n person and once via email to which he finally received an explanation from [Sheriff Bareis]\n\n to refer back to the policy already provided that is not legally accurate can only go to show\n\n that the [PCSO] response of 11,876 records from plaintiff’s FOIA requests dated December\n\n 11, 2016 and December 21, 2016 that contained 6,720 redactions or omissions not\n\n supported by clear and convincing evidence were willfully and intentionally made, or made\n\n in bad faith.”\n\nHarsy contended that therefore, “these 6,720 redactions and omissions *** fit within the meaning\n\nof willful and intentional occurrences or bad faith occurrences pursuant to section 140/11(j) that\n\neach require [the defendant] to pay a civil penalty of $2,500 which comes to a total of\n\n$16,800,000.”\n\n\n\n 5\n\f¶ 11 Harsy does not challenge the circuit court’s findings regarding the dismissal of counts 2\n\nand 4, and as such, we will bypass any summary of those allegations. Count 3 of Harsy’s complaint\n\nsought reimbursement from the defendant for the costs of being overcharged for copies. Harsy\n\nalleged that in response to his December 11 and 21, 2016, FOIA requests, the defendant\n\npurportedly provided Harsy with a total of 1624 pages of information that contained a total of\n\n11,876 records and charged him for 1524 pages of information, plus the cost of materials.\n\nHowever, according to Harsy, he only obtained less than half of these pages, as he was provided\n\nwith 788 pages of information, and was required to pay $170.40, which comes out to over 21.6\n\ncents per page, in violation of section 6(b) of FOIA (id. § 6(b)), which states, “[t]he fee for black\n\nand white, letter or legal sized copies shall not exceed 15 cents per page.” As such, Harsy argued\n\nthat the maximum chargeable amount for 788 pages at 15 cents a page would be $118.20, which\n\nmeant that the defendant had overcharged Harsy by $52.20 for copies, and therefore, “[t]his\n\namounts to 788 occurrences of willful and intentional violations of FOIA or 788 occurrences of\n\n[the defendant] responding to a FOIA request in bad faith.” Accordingly, pursuant to section 11(j)\n\nof FOIA (id. § 11(j)), Harsy sought a penalty of $2500 for each of the 788 occurrences of willful\n\nand intentional violations in responding to Harsy’s FOIA requests or responses that were otherwise\n\nin bad faith, totaling $1,970,000.\n\n¶ 12 On March 22, 2017, the defendant filed a motion to dismiss Harsy’s complaint pursuant to\n\nsections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West\n\n2016)). After leave of court was granted, on July 13, 2017, the defendant filed an amended motion\n\nto dismiss Harsy’s complaint, along with an accompanying memorandum in support thereof,\n\narguing, inter alia, that counts 1 and 3 of Harsy’s complaint should be dismissed pursuant to\n\nsections 2-619(a)(9) and 2-619(c) of the Code (id. § 2-619(a)(9), (c)). The memorandum stated\n\nthat after Harsy filed suit, a new set of documents responsive to Harsy’s December 11 and 21,\n\n 6\n\f2016, FOIA requests were sent to Harsy in an effort to alleviate the concerns raised in his suit. The\n\nmemorandum explained that when the second set of documents were compiled, Sheriff Bareis\n\nrealized that Harsy was seeking only the communications between dispatch and police officers,\n\nnot communications with ambulance personnel. Therefore, Sheriff Bareis did not include\n\nambulance communications in the second set of documents, which resulted in fewer pages being\n\ncopied. According to the defendant, only those redactions specifically authorized by FOIA were\n\nmade, and the documents were re-sent to Harsy.\n\n¶ 13 Attached to the defendant’s amended motion as an exhibit was the affidavit of Martin Beltz,\n\nthe FOIA officer for Perry County, which stated that on March 30, 2017, after the exempted\n\ninformation was redacted, Beltz sent Harsy the second set of records, response letters indicating\n\nthe specific reasons for the redactions that were made, and two refund checks. The affidavit further\n\nindicated that Beltz received confirmation from the United States Post Office that the package was\n\ndelivered to Harsy on April 1, 2017. A post office receipt and confirmation of delivery were\n\nattached to Beltz’s affidavit as an exhibit. The affidavit further explained:\n\n “Along with the correspondence and redacted records, I sent [Harsy] two refund\n\n checks in the amounts of $28.70 and $89.70. These refunds were calculated as follows:\n\n [Harsy] was initially charged $119.20 for the records requested in his December 11, 2016,\n\n request. When the requested police dispatch communications were re-compiled and sent to\n\n him (without ambulance communications), a total of 345 pages were produced. Since the\n\n first 50 pages are free, [Harsy] was charged for only 295 pages at ten cents a page or $29.50.\n\n [Harsy] was, therefore, refunded $89.70 which is the difference between the $119.20 he\n\n was originally charged and $29.50. In conjunction with his request of December 21, 2016,\n\n [Harsy] was initially charged $51.20. When the requested police dispatch communications\n\n were re-compiled (without ambulance communications), a total of 275 pages were\n\n 7\n\f produced. Since the first 50 pages are free, [Harsy] was charged for only 225 pages or\n\n $22.50. [Harsy] was refunded $28.70 which is the difference between the $51.20 he was\n\n originally charged and $22.50.”\n\nAlso attached to the defendant’s amended motion as an exhibit was the affidavit of Judy Valentine,\n\na dispatcher with the PCSO. The affidavit explained, in response to Harsy’s argument that records\n\nwere deleted before they were printed, that often times, the dispatchers do not include a note on\n\nthe dispatch logs because the entry of the specific dispatch code fully explains the communication\n\nand a supplemental note is not necessary.\n\n¶ 14 Accordingly, the defendant argued that the claims raised should be dismissed as moot\n\nbecause the defendant had provided Harsy with all of the records that he had requested along with\n\na letter explaining the exemptions authorizing the redactions from the records produced, and that\n\nHarsy had been refunded for all amounts that he claimed to have been overcharged. The\n\ndefendant’s amended motion to dismiss further argued that Sheriff Bareis had not willfully or\n\nintentionally violated FOIA, and therefore, Harsy’s request for civil penalties should be denied.\n\n¶ 15 On August 1, 2017, Harsy filed a response to the defendant’s amended motion to dismiss,\n\narguing, in relevant part, that in response to Harsy’s FOIA requests, the defendant had provided\n\nHarsy with 788 pages of documents at 21.6 cents a page, which is over the allowable limit of 15\n\ncents per page; the reason for exemptions on any given record failed to be supported by clear and\n\nconvincing evidence; and, the format of the supplemental documents had been changed in an effort\n\nto hide missing pages. Additionally, Harsy alleged that the second set of records were not\n\nsatisfactory because more redactions had been made; the format of the records had been changed;\n\nthousands of records had been removed; and the page numbers of the records had been removed.\n\nHarsy further stated that the new tender of documents was not acceptable, nor were the refund\n\n\n\n 8\n\fchecks. As such, Harsy argued that the defendant’s request for dismissal of Harsy’s complaint\n\nshould be denied.\n\n¶ 16 On August 24, 2017, the defendant filed a reply in support of its amended motion to\n\ndismiss, arguing, inter alia, that because Sheriff Bareis had supplemented his original responses,\n\nprovided Harsy with letters explaining the applicable exemptions for all redactions or withheld\n\nrecords, and refunded amounts that Harsy was overcharged, the action was moot and should be\n\ndismissed pursuant to section 2-619(c) of the Code. The defendant further argued that Harsy was\n\nmerely speculating that the defendant was hiding something or had redacted more than it claimed\n\nthat the defendant had provided to Harsy “exactly what he asked for,” and that the “[p]laintiff’s\n\nspeculation regarding a conspiracy to hide information is unavailing and does not defeat the\n\ndefendant’s motion based on mootness.” Additionally, in response to Harsy’s argument that the\n\nreason for exemptions on any given record failed to be supported by clear and convincing evidence,\n\nthe defendant argued that the supplemental response letters fully complied with FOIA and mooted\n\nHarsy’s claims, in that they specified the exemptions that authorized all redactions and/or records\n\nwithheld and the reasons for the denials. “Nothing more is required in a FOIA response letter.”\n\nThe defendant further stated that it would “gladly provide the [circuit] court with both clean and\n\nredacted copies of all documents provided to plaintiff, for an in camera inspection, in order to\n\nshow ‘by clear and convincing evidence’ that all redactions were entirely justified.” Accordingly,\n\nthe defendant argued that Harsy’s complaint should be dismissed.\n\n¶ 17 A hearing on the defendant’s amended motion to dismiss was held on October 12, 2017.\n\nCounsel for the defense argued that, with respect to Harsy’s December 11 and 21, 2016, FOIA\n\nrequests, which were for transcripts for certain dates between the PCSO and dispatch, “[t]here are\n\nno true transcripts and I think the County probably could have denied his request based on that\n\n\n\n 9\n\ffact alone but they attempted to provide him documents and they provided him dispatch logs for\n\nthe dates he requested.” Counsel further argued that:\n\n “This was never an issue of the [defendant] attempting to withhold documents or\n\n attempting willfully and intentionally doing anything to prevent [Harsy] from having the\n\n information, which is the standard under the Act for penalties. In fact, he was provided\n\n with everything he wanted and in fact the [defendant] bent over backwards to provide him\n\n documents that frankly he might not have been entitled to in the first place. So everything\n\n was completed and he was provided everything he requested in his lawsuit ***. Harsy has\n\n maintained that he hasn’t received all the documents. I don’t know what we can do other\n\n than to tell him he does have all the documents.”\n\nAfter the circuit court heard argument on the matter, the parties agreed to have the circuit court\n\nconduct an in camera inspection of copies of the following documents: (1) the unredacted\n\ndocuments that were sent to Harsy before suit was filed; (2) the redacted documents that were sent\n\nto Harsy before suit was filed; (3) the unredacted documents that were sent to Harsy after suit was\n\nfiled; and (4) the redacted documents that were sent to Harsy after suit was filed. The parties\n\nagreed, prior to the circuit court’s in camera inspection, that all facts relevant to the motion to\n\ndismiss were before the circuit court.\n\n¶ 18 On February 26, 2018, the circuit court granted the defendant’s amended motion to dismiss.\n\nThe circuit court dismissed Harsy’s complaint with prejudice, and further denied Harsy’s request\n\nto impose any statutory penalties, grant injunctive relief, or award attorney fees and/or costs.\n\nSpecifically, with respect to count 1, the circuit court stated:\n\n “1. The Defendant has moved to dismiss Count I of the complaint pursuant to 735\n\n ILCS 5/2-619. As to Count I of the complaint, the court finds that Sheriff Bareis did not\n\n willfully or intentionally violate the Freedom of Information Act when he responded to\n\n 10\n\f plaintiff’s FOIA requests of 12/11/16 and 12/2[1]/16, which are the subject of Count I. The\n\n court finds that despite not having ‘transcripts’ of dispatch communications as requested,\n\n Sheriff Bareis provided plaintiff with dispatch logs for the requested dates and a list of\n\n potential exemptions. The court also finds that plaintiff has been provided with response\n\n letters which fully set forth the reasons for the redactions made, including a detailed factual\n\n basis for the application of any exemption claimed. Further, *** the court finds there is not\n\n a material and genuine disputed question of fact raised as to Count I of plaintiff’s\n\n complaint; as such, Count I of Harsy’s complaint is dismissed with prejudice.”\n\nWith respect to count 3, the circuit court stated:\n\n “3. Defendant has moved to dismiss Count III pursuant to 735 ILCS 5/2-619. As to\n\n Count III of the complaint, the court finds that Sheriff Bareis promptly issued refunds to\n\n Harsy for all claimed overcharges. The court does not find the conduct of Sheriff Bareis to\n\n be willful and intentional. Further, *** the court finds there is not a material and genuine\n\n disputed question of fact raised as to Count III of plaintiff’s complaint; as such, Count III\n\n of plaintiff’s complaint is dismissed with prejudice.”\n\n¶ 19 On March 28, 2018, Harsy filed a motion to reconsider, rehear, modify, and vacate the\n\ncircuit court’s order of February 26, 2018, dismissing Harsy’s claims (motion to reconsider),\n\narguing, in relevant part, that Harsy raised material issues of fact in regard to whether the defendant\n\nacted in bad faith in violation of section 11(j) of FOIA (5 ILCS 140/11(j) (West 2016)). Harsy\n\nfurther argued that the circuit court should vacate its order, reconsider Harsy’s complaint in its\n\nentirety in light of the bad faith standard, and provide Harsy with a ruling as to whether the\n\ndefendant acted in bad faith in counts 1 and 3 of Harsy’s complaint, which would entitle Harsy to\n\nstatutory penalties. Harsy’s motion to reconsider further requested that the circuit court modify its\n\n\n\n 11\n\forder to include an order requiring the defendant to provide Harsy with an index of the records to\n\nwhich access had been denied, pursuant to section 11(e) of FOIA (id. § 11(e)). Harsy argued:\n\n “The [c]ourt finds further support in denying plaintiff’s claim by fact that the\n\n Sheriff’s Office provided plaintiff with response letters when the [c]ourt incorrectly claims\n\n in the Order that the Sheriff’s Office ‘fully set forth the reasons for redactions made,\n\n providing a detailed factual basis for the application of any exemptions claimed.’ This is\n\n incorrect in that the reason for redactions is not provided for each redaction made. Plaintiff\n\n was provided with thousands of records and generalized list for possible redactions of the\n\n thousands of records. FOIA requires strict compliance and information that is not redacted\n\n needs to be presented to the requestor. Pursuant to 5 ILCS 140/11(e) on a motion of the\n\n plaintiff, prior to or after in camera inspection, the court shall order the public body to\n\n provide an index of the records to which access has been denied.”\n\nHarsy requested that the circuit court allow for a rehearing on count 1 of Harsy’s complaint after\n\nHarsy received an index of the records withheld by the defendant.\n\n¶ 20 On April 23, 2018, the defendant filed a response in opposition to Harsy’s motion to\n\nreconsider, arguing, in relevant part, that:\n\n “Plaintiff incorrectly conflates the obligations of a public body to respond to a\n\n FOIA request with the litigation procedures that are available under Section 11 of FOIA.\n\n Under Section 11(e), in the course of litigation, a plaintiff may bring a motion asking the\n\n court to order the creation of an index of redactions. Section 11(e) is not applicable to FOIA\n\n response letters, however, and the Sheriff had no duty to create an index in response to\n\n Plaintiff’s FOIA requests.”\n\nThe defendant further argued that Harsy’s request for an index was not a proper motion under\n\nsection 2-1203(a) of the Code (735 ILCS 5/2-1203(a) (West 2016)), which permits a party, 30\n\n 12\n\fdays after the entry of a judgment, to file a motion for rehearing, retrial, modification of judgment,\n\nto vacate the judgment or for other relief. The defendant argued that the “other relief” that can be\n\nsought pursuant to section 2-1203(a) must be similar in nature to the other types of relief available\n\nunder section 2-1203(a), and that Harsy’s request for an index pursuant to section 11(e) of FOIA\n\nwas not similar in nature to a motion seeking rehearing, retrial, modification, or vacation of\n\njudgment. According to the defendant, Harsy’s request for an index was “similar in nature to a\n\ndiscovery motion which must be filed before dismissal. Therefore, Plaintiff’s motion seeking an\n\nindex of redactions is not the type of motion that is permitted under Section 2-1203(a).”\n\n¶ 21 The defendant additionally argued that Harsy’s request for an index was untimely\n\nrequested. The defendant argued that section 11(e) of FOIA permits a plaintiff to request an index\n\nof redactions before or after an in camera review, but that section 11(e) did not permit a plaintiff\n\nto request an index after the case had been dismissed, arguing, “[t]his matter had been pending for\n\nover a year when the court granted the defendant’s motion to dismiss. Plaintiff had ample time\n\nbefore the matter was dismissed to file a motion requesting an index and never did so. Therefore,\n\nPlaintiff’s untimely motion for an index should be denied.” The defendant further argued that\n\nbecause the defendant had demonstrated that all redactions were authorized by FOIA, no further\n\nrelief was warranted, and that the requested index would be an undue burden upon the defendant.\n\n¶ 22 On September 10, 2018, the circuit court denied Harsy’s motion to reconsider, stating, in\n\nrelevant part, that Harsy’s motion merely repeated arguments previously made to the circuit court\n\nand did not present any additional arguments or material issues of fact. The circuit court’s order\n\nfurther stated, with respect to Harsy’s request for an index of redactions, that “such request for\n\nrelief is not permitted pursuant to 735 ILCS 5/2-1203(a) and/or was untimely requested contrary\n\nto 5 ILCS 140/11(e).” This appeal followed.\n\n\n\n 13\n\f¶ 23 II. ANALYSIS\n\n¶ 24 Harsy appeals from the trial court’s orders, entered on February 26, 2018, and September\n\n10, 2018, granting the defendant’s amended motion to dismiss plaintiff’s complaint filed on July\n\n13, 2017, and denying Harsy’s request for an index. Harsy states that the circuit court erred in\n\ndismissing his complaint, arguing that (1) he raised a material question of fact in count I of his\n\ncomplaint where he alleged that the defendant’s conduct amounted to willful and intentional\n\nviolation of FOIA and/or minimally bad faith adherence to FOIA when responding to Harsy’s\n\nFOIA requests; (2) the circuit court erred in finding that the response letters provided by the\n\ndefendant after Harsy filed his complaint, and the later provided documents and records, were\n\ninadequate responses to Harsy’s initial requests; (3) the circuit court erred in failing to find a\n\ngenuine and material issue of fact existed as to whether or not the defendant willfully and\n\nintentionally violated FOIA and/or acted in bad faith in respect to the monies that Harsy was\n\ncharged for copies; and (4) the circuit court erred in failing to order an index of redactions after an\n\nin camera inspection pursuant to section 11(e) of FOIA (5 ILCS 140/11(e) (West 2016)).\n\n¶ 25 A. Dismissal of Count I\n\n¶ 26 On appeal, Harsy contends that the trial court erred by granting the defendant’s section 2-\n\n619 motion to dismiss because the initial answer to Harsy’s FOIA request failed to address several\n\nof his requests and failed to reference a specific legal reason for the partial denial of the request,\n\nthus violating FOIA. Harsy claims that he was never provided the records requested in his FOIA\n\nrequests on December 11, 2016, and December 21, 2016, nor the reasons for redactions. Harsy\n\nadditionally contends that the trial court erred by failing to determine whether the defendant acted\n\nin bad faith in responding to his FOIA requests. Harsy is requesting that this court issue an\n\ninjunction commanding the PCSO to disclose the disputed records and provide an explanation as\n\nto why the documents were redacted and to explain any omissions or removal of pages. Further,\n\n 14\n\fHarsy is requesting that this court enter an order awarding the reimbursement of copying fees, and\n\nawarding sanctions for each instance of willful and intentional failure to comply with FOIA or\n\nresponses in bad faith.\n\n¶ 27 Here, the defendant requested the dismissal of counts 1, 2, and 3 of Harsy’s complaint\n\npursuant to section 2-619(a)(9) of the Code, which provides for an affirmative matter that avoids\n\nthe legal effect of or defeats the claim. 735 ILCS 5/2-619(a)(9) (West 2016). We review the trial\n\ncourt’s grant of a section 2-619 motion to dismiss de novo. Barner v. Fairburn, 2019 IL App (3d)\n\n180742, ¶ 10. A reviewing court considers the pleading and any supporting documents found on\n\nthe record, interpreting everything in the light most favorable to the nonmoving party. Van Meter\n\nv. Darien Park District, 207 Ill. 2d 359, 368 (2003). Courts may consider affidavits when ruling\n\non motions to dismiss. 735 ILCS 5/2-619(c) (West 2016).\n\n¶ 28 The defendant argued in the trial court, and now on appeal, that the defendant had tendered\n\nto Harsy all documents that he is entitled to, and thus the case was properly dismissed as moot.\n\nSee Yu v. International Business Machines Corp., 314 Ill. App. 3d 892, 897-98 (2000). The\n\ndefendant argues, alternatively, that the counts were properly dismissed as the FOIA requests\n\nsought documents that did not exist, and thus, Sheriff Bareis was under no obligation to provide\n\nany records in response. Further, the defendant argues that the circuit court’s denial of a statutory\n\nremedy for the defendant’s alleged willful and intentional failure to comply with FOIA when\n\nresponding to Harsy’s December FOIA requests was not against the manifest weight of the\n\nevidence.\n\n¶ 29 On December 11, 2016, Harsy requested, pursuant to FOIA, that the PCSO provide a\n\n“printed transcript of all conversations between the [PCSO] police officers and police dispatch”\n\nfor certain dates. On December 21, 2016, Harsy requested the same for another range of dates. The\n\ndefendant initially provided Harsy with what he describes as “8,225 separate records.” After suit\n\n 15\n\fwas filed, the defendant provided another set of records which included, “3,684 records.” Sheriff\n\nBareis explained, in a notarized affidavit, that the reason there were less records in his second\n\ndisclosure was because, after a more careful reading of the FOIA requests, he realized that Harsy\n\nwas requesting only police officer communication, and thus, he omitted nonresponsive\n\ncommunication from the provided dispatch logs.\n\n¶ 30 We reject the defendant’s argument that Sheriff Bareis had no obligation to provide records\n\nat all in response to the December 11, 2016, and December 21, 2016, FOIA requests because\n\n“transcripts did not exist.” We acknowledge that the nonexistence of requested documents is a\n\ncognizable affirmative defense to a complaint grounded in FOIA. Bocock v. Will County Sheriff,\n\n2018 IL App (3d) 170330, ¶ 52. Further, it is clear that FOIA does not “create an obligation on the\n\npart of any public body to maintain or prepare any public record which was not maintained or\n\nprepared by such public body” (5 ILCS 140/1 (West 2016)). Here, however, the language used by\n\nHarsy to describe the public records sought was reasonably clear. See Chicago Tribune Co. v.\n\nDepartment of Financial & Professional Regulation, 2014 IL App (4th) 130427, ¶ 33 (“A request\n\nto inspect or copy must reasonably identify a public record and not general data, information, or\n\nstatistics.”).\n\n¶ 31 In response to Harsy’s request for transcripts of conversations between police officers and\n\npolice dispatch, the defendant provided the radio logging reports showing the communication\n\nlogged by dispatch between the PCSO’s police officers and dispatch. While these entries may not\n\nmeet a strict definition of transcripts of conversations, they are the records which are kept by\n\nSheriff Bareis’s department that show communication of the type requested. Where the defendant\n\nnever denied the existence of transcripts nor argued this point in the lower court, and Harsy does\n\nnot claim on appeal that the radio logging reports were not the requested documentation that was\n\n\n\n 16\n\fthe subject of his FOIA request, we cannot find that the defendant was under no obligation to\n\nrespond to Harsy’s FOIA request.\n\n¶ 32 We do find, however, that the case was properly dismissed as moot. A claim is moot when\n\nno actual controversy exists, or events occur which make it impossible for a court to grant effectual\n\nrelief. Duncan Publishing, Inc. v. City of Chicago, 304 Ill. App. 3d 778, 782 (1999). Where an\n\nindividual has received what he sought, his action should be dismissed as moot. Id. The mootness\n\ndoctrine is applied to FOIA claims once the requested records have been produced. Roxana\n\nCommunity Unit School District No. 1 v. Environmental Protection Agency, 2013 IL App (4th)\n\n120825, ¶ 42. This court usually reviews de novo whether a case is moot. People ex rel. Rahn v.\n\nVohra, 2017 IL App (2d) 160953, ¶ 27. Whether an exemption applies under FOIA is a matter of\n\nstatutory construction, which as a question of law is reviewed de novo. Garlick v. Naperville\n\nTownship, 2017 IL App (2d) 170025, ¶ 44. Where the circuit court conducts an evidentiary hearing\n\n(like the in camera inspection here), however, we review whether the circuit court’s factual\n\nfindings were against the manifest weight of the evidence, while still reviewing questions of law\n\nde novo. Hites v. Waubonsee Community College, 2016 IL App (2d) 150836, ¶ 32.\n\n¶ 33 The circuit court performed an in camera inspection of the documents in question and\n\nconsidered the parties’ pleadings; affidavits; redacted and unredacted documents sent to Harsy\n\nbefore and after suit was filed; letters and correspondence between Harsy and the FOIA officer;\n\nand made its determination as to whether the redacted records were exempt from disclosure, and\n\nwhether the defendant violated FOIA willfully and intentionally or in bad faith. Accordingly, we\n\nwill review under the manifest weight of the evidence standard the circuit court’s factual findings\n\nin its dismissal order, and we will review de novo the circuit court’s legal determinations.\n\n¶ 34 A public body must comply with a FOIA request unless an exemption applies. Illinois\n\nEducation Ass’n v. Illinois State Board of Education, 204 Ill. 2d 456, 463 (2003). To sustain its\n\n 17\n\fburden to prove an exemption applies, a public body must provide a detailed explanation justifying\n\nits exemption claim, specifically addressing the requested documents in a manner allowing for\n\nadequate adversarial testing. Peoria Journal Star v. City of Peoria, 2016 IL App (3d) 140838, ¶ 12.\n\nWhether an exemption applies is a matter of statutory construction that this court reviews de novo.\n\nLucas v. Prisoner Review Board, 2013 IL App (2d) 110698, ¶ 15.\n\n¶ 35 The defendant asserted that the information it redacted was properly exempted under\n\nsections 7(1)(a), 7(1)(b), 7(1)(c), 7(1)(d)(iv), 7(1)(d-5), and 7(1)(k)1 (5 ILCS 140/7(1)(a), (1)(b),\n\n(1)(c), (1)(d)(iv), (1)(d-5) (West 2016)). The parties agreed, prior to the circuit court’s in camera\n\ninspection, that all facts relevant to the motion to dismiss were before the circuit court. The\n\ndefendant provided the unredacted documents to the trial court, which viewed them in camera and\n\ndetermined that the claimed exemptions applied.\n\n¶ 36 Harsy argues on appeal that the circuit court erred in ruling that the response letters and\n\ndocuments provided after Harsy filed suit were adequate support for the reasons for the redactions\n\nand the circuit court erred in ruling that the altered documents and records were an adequate\n\nreplacement for the original records at issue. In support, Harsy argues that the documents redacted\n\ninformation that had not been previously redacted and altered the format from the original\n\ndisclosure. Harsy does not explain how the alteration of the format affects the responsive nature\n\nof the documents, and we do not find, after review of the documents, that it does. As to the\n\nadditional redactions and deletions, Sheriff Bareis explained by affidavit on May 18, 2017, that\n\nwhen the documents were printed a second time, he realized that he had initially provided\n\n\n\n 1\n While the letter provided by the defendant cited section 7(1)(k) (5 ILCS 140/7(1)(k) (West 2016)),\na section relating to architects’ plans and construction documents where disclosure would compromise\nsecurity, the language after the citation was relating to section (1)(nn) (5 ILCS 140/7(1)(nn) (West 2004))\nof a prior version of the statute which indicated “Law enforcement officer identification information or\ndriver identification information compiled by a local law enforcement agency or the Department of\nTransportation under Section 11-212 of the Illinois Vehicle Code.”\n 18\n\fdocuments that were not responsive to Harsy’s initial request for conversations between the PCSO\n\npolice officers and police dispatch. As such, Sheriff Bareis recompiled the documents to include\n\ncommunication between his police officers and dispatch only, resulting in fewer records. While\n\nSheriff Bareis described the further redactions as filtering for ambulance communication, our\n\nreview indicates that they also filtered out other calls that were not between PCSO police officers\n\nand dispatch, which were also not responsive to Harsy’s FOIA request.\n\n¶ 37 Further, Harsy actually received the records in both responses prior to and after the suit\n\nwas filed. Thus, there is no dispute regarding the records to which Harsy draws this courts attention\n\nin his brief, as they were either provided initially, or provided in a supplemental response. Harsy\n\nhas not identified additional documents which he believes were withheld by the defendant that\n\nshould have been provided in response to his FOIA request, and this court cannot discern any from\n\nour review of the record on appeal.\n\n¶ 38 Regarding the defendant’s redactions, it has the burden of proving an exemption with\n\ndetailed specificity which applies only upon review in the circuit court, and not in the initial denial\n\nletter, as urged by Harsy. See Kopchar v. City of Chicago, 395 Ill. App. 3d 762, 770 (2009). If the\n\nparty seeking disclosure of information under FOIA challenges the public body’s denial in the\n\ncircuit court, the public body has the burden of proving that the records in question fall within the\n\nexemption it has claimed. Illinois Education Ass’n, 204 Ill. 2d at 464.\n\n¶ 39 We have reviewed the redactions and claimed exemptions de novo and find that the\n\ndefendant met its burden of proving that the claimed exemptions applied to the redacted or deleted\n\ninformation documented in the record on appeal and provided to Harsy. Under the express\n\nlimitation of FOIA, Harsy is entitled to no more than he has received. Thus, the circuit court did\n\nnot err in determining that the exemptions cited in the response letters applied to uphold\n\nnondisclosure under FOIA. We therefore find this issue moot, as there is no other relief we could\n\n 19\n\fgrant to plaintiff if we were to rule in his favor where he has already received all documents that\n\nhe is entitled to receive in response to his requests.\n\n¶ 40 Harsy further argues that the circuit court erred in failing to determine whether or not the\n\ndefendant acted in bad faith. Despite our finding that Harsy’s request for an injunction is moot, we\n\nmust also address Harsy’s request for the imposition of civil penalties. See Roxana Community\n\nUnit School District No. 1, 2013 IL App (4th) 120825, ¶ 42 (finding request for civil penalty\n\nsurvives moot FOIA claim). Section 11(j) of FOIA states in relevant part: “If the court determines\n\nthat a public body willfully and intentionally failed to comply with this Act, or otherwise acted in\n\nbad faith, the court shall also impose upon the public body a civil penalty of not less than $2,500\n\nnor more than $5,000 for each occurrence.” 5 ILCS 140/11(j) (West 2016). To obtain civil\n\npenalties pursuant to section 11(j), Harsy must demonstrate that the public body (1) failed to\n\ncomply with FOIA, and (2) did so willfully, intentionally, and in bad faith. Williams v. Bruscato,\n\n2021 IL App (2d) 190971, ¶ 14. Although FOIA does not define “bad faith,” the court in Williams\n\ndefined it as failing to comply with FOIA “deliberately, by design, and with a dishonest purpose.”\n\nId. ¶ 15. Accordingly, based upon the plain meanings of the statute’s terminology, to warrant the\n\nimposition of a civil penalty under section 11(j) of FOIA, the public body must not only have\n\nintentionally failed to comply with FOIA but must have done so deliberately, by design, and with\n\na dishonest purpose. Id. A trial court’s finding that a public body willfully, intentionally, and in\n\nbad faith failed to comply with FOIA is reviewed under the manifest weight of the evidence\n\nstandard, regardless of whether the underlying facts are disputed. Rock River Times v. Rockford\n\nPublic School District 205, 2012 IL App (2d) 110879, ¶ 48.\n\n¶ 41 In this case, the circuit court’s dismissal order, entered on February 26, 2018, clearly stated:\n\n“As to Count I of the complaint, the court find that Sheriff Bareis did not willfully or intentionally\n\n\n\n 20\n\fviolate the Freedom of Information Act when he responded to plaintiff’s FOIA requests of\n\n12/11/16 and 12/2[1]/16, which are the subject of Count I.”\n\n¶ 42 Harsy, as evidence of the defendant’s willful and intentional, or bad faith response to\n\nHarsy’s FOIA requests, argues (1) that Sheriff Bareis’s office used untrained FOIA staff in\n\nhandling plaintiff’s FOIA requests; (2) that Sheriff Bareis knew that the FOIA policy was outdated\n\nbut told Harsy to rely on it as justification for the exemptions made; (3) that Sheriff Bareis\n\ndemanded that Harsy pick up the records from Sheriff Bareis’s office instead of mailing them;\n\n(4) that Sheriff Bareis kept a copy of the documents without informing Harsy and charged him for\n\nSheriff Bareis’s copy; (5) lack of adequate FOIA signage at Sheriff Bareis’s office; (6) the\n\ndefendant’s failure to correct issues prior to the filing of a lawsuit; (7) the defendant’s failure to\n\nprovide a letter explaining the reasoning for the FOIA redactions and how to appeal a FOIA\n\ndecision until two months after suit was filed; and (8) that after Harsy filed his complaint, Sheriff\n\nBareis’s office provided another set of responsive documents with new redactions and an altered\n\nformat.\n\n¶ 43 Where the circuit court specifically stated that it did not find that the defendant had\n\nwillfully or intentionally violated FOIA, it necessarily follows that it could not have found that the\n\ndefendant failed to comply with FOIA deliberately, by design, and with a dishonest purpose. We\n\nhave thoroughly reviewed the record on appeal in this matter and, based on our review of the\n\nrecord, we find that the circuit court’s factual findings were not against the manifest weight of the\n\nevidence. Thus, Harsy was not entitled to sanctions pursuant to section 11(j) of FOIA.\n\n¶ 44 B. Dismissal of Count III\n\n¶ 45 Next, Harsy argues that count 3 of his complaint was brought based on the defendant’s\n\nactions committed prior to Harsy filing suit, and as such, Harsy argues that he raised an issue of\n\ngenuine material fact as to whether or not the defendant willfully and intentionally violated FOIA\n\n 21\n\fand/or adhered to FOIA in bad faith with respect to the 788 instances Harsy was charged for copies,\n\nand therefore, count 3 of Harsy’s complaint should be reinstated. The defendant argues that\n\nHarsy’s claim that he was overcharged is also moot. We agree.\n\n¶ 46 The defendant calculated the number of pages disclosed after the suit was filed, minus 50\n\npages, and then multiplied the number of pages by 10 cents per page. Harsy was issued a refund\n\nfor the difference between the amounts that he was charged initially and the amount that was due\n\naccording to the second calculation. Harsy admits in his brief that the defendant issued refunds\n\nonce the lawsuit was filed. Thus, count 3 is moot as to refunds for overcharged copying fees.\n\n¶ 47 Harsy also argues that the overcharging of copying fees was evidence of bad faith\n\nadherence to FOIA. The circuit court found that the defendant promptly issued refunds to Harsy\n\nfor all claimed overcharges and did not find the conduct of the defendant to be willful and\n\nintentional. For the same reasons stated above, a finding of bad faith by the trial court would not\n\nhave been appropriate here. We have thoroughly reviewed the record on appeal in this matter and,\n\nbased on our review of the record, we find that the circuit court’s factual findings were not against\n\nthe manifest weight of the evidence and there was no evidence of willful and intentional violation\n\nof FOIA, or bad faith on the part of the defendant. Thus, Harsy was not entitled to sanctions\n\npursuant to section 11(j) of FOIA.\n\n¶ 48 C. Index\n\n¶ 49 Finally, Harsy argues that his request for an index of redactions should have been granted\n\nbecause the language of FOIA indicates that an index may be requested before or after an in\n\ncamera inspection, and that it was requested at the only time allowable. As such, Harsy argues that\n\nthe circuit court erred in ruling that such a request for relief is not permitted pursuant to section 2-\n\n1203(a) of the Code (735 ILCS 5/2-1203(a) (West 2016)) and/or was untimely requested contrary\n\nto section 11(a) of FOIA (5 ILCS 140/11(a) (West 2016)).\n\n 22\n\f¶ 50 Harsy requested an index pursuant to section 11(e) of FOIA in a motion to reconsider the\n\ncircuit court’s order of dismissal filed on March 28, 2018. That section provides that, “prior to or\n\nafter in camera inspection, the court shall order the public body to provide an index of the records\n\nto which access has been denied.” 5 ILCS 140/11(e) (eff. July 28, 2016). An indexing order\n\nconcerns procedural details of the case before a court. Goodrich Corp. v. Clark, 361 Ill. App. 3d\n\n1033, 1040 (2005). The index is designed to balance an individual’s right to disclosure of\n\ndocuments pursuant to FOIA’s underlying purpose of opening government conduct to scrutiny by\n\nan informed, active citizenry, with the agency’s right to withhold documents that fall within\n\nFOIA’s clearly delineated exceptions to the general rule of disclosure. Dole v. City of Chicago,\n\n2017 IL App (1st) 150032-U, ¶ 59.\n\n¶ 51 While the statute permits a request for an index either before or after an in camera review,\n\nhere, Harsy failed to request an index prior to the circuit court’s in camera inspection, and further\n\nagreed that the circuit court had before it all facts relevant to rule on the motion to dismiss. If Harsy\n\nbelieved that an index was required for that ruling, Harsy should have requested the index prior to\n\nsubmitting the matter to the circuit court. While we acknowledge that an index may be useful for\n\npurposes of preparing arguments for a motion to reconsider or on appeal, especially where our\n\nreview is de novo regarding redactions or deletions of records in response to a FOIA request, Harsy\n\ndid not argue that the lack of an index affected his ability to fashion arguments on appeal, nor was\n\nsuch argument made before the trial court.\n\n¶ 52 We find the necessity of an index to be moot where this court has determined that the\n\ndefendant proved that the redacted and deleted material, which can be discerned from the record,\n\nwas properly withheld pursuant to the exemptions claimed by the defendant. Additionally, where\n\nthe defendant failed to argue in the circuit court that there were responsive documents that were\n\n\n\n 23\n\fdeleted and could not be properly reviewed by the circuit court without an index being provided\n\nby the defendant, this court is unable to review the propriety of those deletions.\n\n¶ 53 III. CONCLUSION\n\n¶ 54 For the foregoing reasons, we affirm the circuit court’s February 26, 2018, order granting\n\nthe defendant’s amended motion to dismiss Harsy’s complaint because Harsy’s claims were moot\n\nwhere the defendant supplemented its original responses, provided Harsy with letters explaining\n\nthe applicable exemptions for all redactions or withheld records, and refunded amounts that Harsy\n\nwas overcharged for copies. We further find that the circuit court’s finding that the actions of the\n\ndefendant in responding to Harsy’s FOIA requests did not demonstrate willful, intentional, or bad\n\nfaith compliance on the part of the defendant was not against the manifest weight of the evidence.\n\nAdditionally, we affirm the circuit court’s September 10, 2018, order denying Harsy’s request for\n\nan index where a specific index is now moot. Accordingly, we affirm the judgment of the circuit\n\ncourt of Perry County.\n\n¶ 55 Affirmed.\n\n\n\n\n 24\n\f"} {"dedup_key":"2024 IL App (5th) 220824-U","dedup_key_type":"neutral_citation","neutral_citation":"2024 IL App (5th) 220824-U","case_name":"Jamal Shehadeh v. The City of Taylorville","court_level":"Appellate","appellate_district":"5th","year":2024,"county":"Christian","appellate_docket":"5-22-0824","circuit_docket":"22-MR-32","published":0,"authoring_justice":"Boie","statute":["FOIA"],"exemptions_cited":[],"public_body":"City of Taylorville","requesting_party":"Jamal Shehadeh","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The court affirmed the dismissal of a FOIA complaint, holding that a letter sent by the plaintiff to the mayor did not constitute a 'public record' because it did not pertain to public business and was not in the possession or control of a public body. The court further noted that requiring a public body to provide a requester with a copy of their own correspondence does not further the legislative purpose of FOIA.","best_text_source":"Court Opinions - FOIA/Shehadeh v. City of Taylorville, 2024 IL App (5th) 220824-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:57.448604","site_category":"Public Records Definition","date_decided":"2024-02-14","site_url":"/cases/2024%20IL%20App%20(5th)%20220824-U/","text_url":"/case-text/2024%20IL%20App%20(5th)%20220824-U.txt","full_text":" 2024 IL App (5th) 220824-U\n NOTICE\n NOTICE\n Decision filed 02/14/24. The\n This order was filed under\n text of this decision may be NO. 5-22-0824\n Supreme Court Rule 23 and is\n changed or corrected prior to\n the filing of a Petition for not precedent except in the\n\n Rehearing or the disposition of\n IN THE limited circumstances allowed\n the same. under Rule 23(e)(1).\n APPELLATE COURT OF ILLINOIS\n\n FIFTH DISTRICT\n______________________________________________________________________________\n\nJAMAL SHEHADEH, ) Appeal from the\n ) Circuit Court of\n Plaintiff-Appellant, ) Christian County.\n )\nv. ) No. 22-MR-32\n )\nTHE CITY OF TAYLORVILLE, ) Honorable\n ) Douglas C. Gruenke,\n Defendant-Appellee. ) Judge, presiding.\n______________________________________________________________________________\n\n JUSTICE BOIE delivered the judgment of the court.\n Justices Welch and Moore concurred in the judgment.\n\n ORDER\n\n¶1 Held: The trial court correctly granted a motion to dismiss the plaintiff’s Freedom of\n Information Act complaint where the plaintiff requested a copy of his own letter to\n the mayor of Taylorville and where the letter was not a “public record” because it\n did not pertain to “public business” and it was not “prepared by or for, *** used by,\n received by, in the possession of, or under the control of” a “public body” as that\n term is defined by statute (5 ILCS 140/2(a), (c) (West 2020)).\n\n¶2 At issue in this appeal is whether the Freedom of Information Act (FOIA) (5 ILCS 140/1\n\net seq. (West 2020)) requires compliance with a citizen’s request for a copy of a letter that the\n\ncitizen sent to an individual public official, such as the mayor of a city. The plaintiff, Jamal\n\nShehadeh, filed a FOIA complaint against the defendant, the City of Taylorville (City), when its\n\nFOIA officer sent him a letter denying his request for a copy of his own letter to the mayor of\n\nTaylorville. The trial court dismissed the complaint with prejudice, finding that the plaintiff’s\n\n\n 1\n\frequest for a copy of his own letter was inconsistent with the stated legislative purpose of FOIA.\n\nSee id. § 1. The plaintiff appeals, arguing that (1) his letter was a “public record” within the\n\nstatutory definition in FOIA and (2) the court erred in questioning whether his proposed\n\ninterpretation of FOIA was consistent with its purposes and whether it would subject cities to\n\nfrivolous lawsuits, matters he contends are outside the scope of the issues before the court. We\n\naffirm.\n\n¶3 I. BACKGROUND\n\n¶4 On March 4, 2022, the plaintiff, while incarcerated in the Christian County jail, sent a letter\n\nto the mayor of Taylorville complaining “about the city attorney and other matters.” Although the\n\nrecord does not include a copy of the letter and the complaint does not contain any allegations\n\nsetting forth its precise contents, the City maintains that the letter contained complaints about\n\nattorney Rocci L. Romano’s conduct while representing the City in another lawsuit that was\n\npending between the plaintiff and the City, and the plaintiff acknowledged during argument to the\n\ntrial court that the letter contained complaints about Romano. 1 The letter also included a request\n\nfor a copy of the letter, which was couched as a request under FOIA.\n\n¶5 On April 6, 2022, the City’s FOIA officer denied the plaintiff’s request for a copy of his\n\nletter to the mayor. She indicated that the plaintiff’s letter constituted “an improper and illegal\n\nattempted communication” with representatives of the City who were represented by counsel in\n\n\n\n\n 1\n We note that multiple appeals are currently pending before this court involving suits by the\nplaintiff against the City of Taylorville, the Village of Kincaid, Taylorville Police Chief Dwayne Wheeler,\nand various other county and municipal officials. We may take judicial notice of the records in those\nproceedings. Bush v. J&J Transmissions, Inc., 2017 IL App (3d) 160254, ¶ 11 (citing May Department\nStores Co. v. Teamsters Union Local No. 743, 64 Ill. 2d 153, 159 (1976)). At issue in at least one of those\ncases are multiple letters the plaintiff sent to Chief Wheeler and the mayor concerning various aspects of\nhis pending actions against the City and Wheeler, including complaints about Romano’s conduct in that\nlitigation.\n 2\n\fpending litigation with the plaintiff. She noted that such communications had been prohibited by\n\na court order. As such, she explained, the plaintiff’s March 4 letter was “not a valid FOIA request.”\n\n¶6 On April 26, 2022, the plaintiff filed a pro se motion for leave to file a complaint under\n\nFOIA. 2 The proposed complaint was attached to the motion. In it, the plaintiff argued that when\n\nhis letter was received by the mayor, “it became a public record as defined by the FOIA.” He\n\nfurther argued that the City had no legal basis for denying his request for a copy of the letter. As\n\nrelief, the plaintiff requested (1) a declaration that the City’s refusal to produce a copy of the letter\n\nwas unlawful, intentional, willful, and in bad faith; (2) an order directing the City to produce a\n\ncopy of the letter; and (3) costs and civil penalties.\n\n¶7 On May 31, 2022, the trial court granted the plaintiff’s motion for leave to file the petition.\n\nThe petition was filed that day.\n\n¶8 On July 5, 2022, the City filed a motion to dismiss the plaintiff’s petition pursuant to section\n\n2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2020)). The\n\nCity argued that (1) the letter was an improper attempt by a pro se litigant to make direct contact\n\nwith a represented opposing party in another pending case rather than a legitimate FOIA request;\n\nand (2) the letter was not a “public record” under FOIA because it was addressed to the mayor,\n\nwho was not a “public body” under FOIA. Although the motion to dismiss did not cite section 2-\n\n615 of the Code (id. § 2-615), the City also argued that for the reasons stated, the complaint failed\n\nto state a claim for a violation of FOIA.\n\n\n\n\n 2\n In October 2021, a Christian County trial judge entered an order finding the plaintiff to be a\nvexatious litigant and requiring him to seek leave of the court before filing any new cases in Christian\nCounty.\n 3\n\f¶9 On July 11, 2022, the plaintiff filed a response in opposition to the City’s motion to dismiss.\n\nHe argued, in pertinent part, “All records in the possession or control of a public body, its agents,\n\nofficers, and its employees that pertain to public business are subject to the FOIA.”\n\n¶ 10 The trial court held a motion hearing on December 16, 2022. Although several motions\n\nwere pending in four different cases involving the same parties, including this case, the court\n\nconsidered only the motion to dismiss filed in this case and a motion to dismiss filed in one other\n\npending case.\n\n¶ 11 The City argued that the plaintiff’s letter is not a “public record” as defined by FOIA\n\nbecause it was sent to the mayor, who is not a “public body” under FOIA’s statutory definition.\n\nCounsel called the court’s attention to two cases cited in his motion to dismiss—City of Champaign\n\nv. Madigan, 2013 IL App (4th) 120662, and Quinn v. Stone, 211 Ill. App. 3d 809 (1991). Counsel\n\nexplained that pursuant to the reasoning of both cases, individual city aldermen are not “public\n\nbodies” under FOIA, and, as such, communications sent to or by aldermen only become public\n\nrecords within the meaning of FOIA if they are discussed at a public meeting or communicated to\n\na sufficient number of other aldermen to constitute a quorum of the city council.\n\n¶ 12 The court asked counsel to acknowledge that there is a difference between an alderman\n\nand a mayor, emphasizing that mayors have powers individual aldermen do not, including the\n\npower of appointment. In response, counsel argued, “But the mayor does not have the power,\n\nunilaterally, to get rid of the [City’s] attorney, *** to approve or disapprove his fees. That is the\n\npower of the council as a whole.” He further argued that it is the city council that is a “public body”\n\nunder FOIA, not its individual members, and because the city council is comprised of the mayor\n\nand the aldermen, the rationale of City of Champaign and Quinn applies to mayors as well as\n\nindividual aldermen.\n\n\n 4\n\f¶ 13 The plaintiff began by arguing that a FOIA request is not required to take any specific form.\n\nHe argued, “Merely asking for a copy of the communication sent to a public official to be returned\n\nto the author is and of itself a Freedom of Information request.” The plaintiff opined that requesting\n\na copy of his own letter was reasonable and not “vexatious or disagreeable.” He explained that he\n\nmade this request because he wanted “legal written proof” that his complaint “had been made part\n\nof the public record,” and it was difficult for inmates to obtain copies of correspondence due to “a\n\nconvoluted process to get legal copy.” The plaintiff noted that asking for a copy of his\n\ncorrespondence had been his “practice in dealing with the City of Taylorville for two years.”\n\n¶ 14 Addressing the plaintiff, the court stated, “I’ve seen several of the requests and you always\n\nseem to ask for a copy of the letter back. It usually comes with other documents. So, in this\n\nparticular situation, what was the information that you’re requesting outside of your request?” The\n\nplaintiff replied, “It was just so that I had a written proof that my complaint, my communication\n\ncontaining my complaint about Mr. Romano’s services, had been made part of the public record.”\n\n¶ 15 The court then stated, “The purpose of FOIA, the stated purpose of FOIA in section one\n\n*** is not so that you can get confirmation that somebody received it. The purpose of FOIA is to\n\n*** make sure that the records are open to the public and people have access to those records.”\n\nThe court asked the plaintiff how his request for a copy of his own letter fit within this purpose\n\nand whether his interpretation would open the door to “multiple frivolous lawsuits” subjecting\n\nmunicipalities to sanctions “simply because they didn’t return a copy of the request.”\n\n¶ 16 In response, the plaintiff argued that returning a copy of a letter to the citizen who sent it\n\nwould impose “no burden on the public body.” He explained that the City has “certain record-\n\nkeeping obligations,” including stamping correspondence with the date and the word “received.”\n\n\n\n\n 5\n\f¶ 17 The court agreed that returning a copy of a letter would not be a burden on the City. The\n\ncourt stated, however, “But we don’t even get to the issue of whether it’s a burden.” The court\n\nexplained that the question for the plaintiff was how his request for a copy of his own letter fit\n\nwithin the stated legislative purpose of FOIA, which is ensuring that all people have access to\n\ninformation regarding the affairs of government.\n\n¶ 18 The plaintiff argued that the stated legislative purpose of FOIA was not “necessarily\n\nbinding when there’s a more specific provision that controls.” He argued that the requested\n\ndocument—a copy of his letter to the mayor—falls within the statutory definition of a public\n\nrecord, which includes “all information in the possession or control of [a] public body.” He further\n\nargued that any doubts should be construed broadly in favor of disclosure.\n\n¶ 19 The court ruled from the bench. In explaining his decision to grant the City’s motion to\n\ndismiss, the trial judge explained, “I think it violates the spirit of FOIA to send merely a request\n\nasking for a copy of that request back.” In a docket entry that day, the court stated that “for reasons\n\nstated on the record,” the court granted the City’s motion to dismiss with prejudice. This timely\n\nappeal followed.\n\n¶ 20 II. ANALYSIS\n\n¶ 21 The plaintiff argues that (1) under the express statutory language of FOIA, his letter to the\n\nmayor was a public record subject to disclosure; and (2) the court’s questions concerning the\n\npurpose of FOIA and the possibility of opening the door to frivolous lawsuits went beyond the\n\nscope of the issue before it. We reject these contentions.\n\n¶ 22 This appeal comes to us after a ruling on a motion to dismiss pursuant to section 2-619 of\n\nthe Code (735 ILCS 5/2-619 (West 2020)). In ruling on section 2-619 motions, courts must accept\n\nall well-pled facts in the complaint as true and interpret those allegations in the light most favorable\n\n\n 6\n\fto the plaintiff. Kucinsky v. Pfister, 2020 IL App (3d) 170719, ¶ 33. A section 2-619 motion admits\n\n(or assumes) the legal sufficiency of the complaint, but it asserts the existence of an affirmative\n\ndefense or another matter that defeats the plaintiff’s claim. Wilson v. Quinn, 2013 IL App (5th)\n\n120337, ¶ 11. As we mentioned earlier, although the City did not cite section 2-615 in its motion\n\nto dismiss, it did argue that the plaintiff’s complaint failed to state a claim for relief under FOIA.\n\nIn determining whether to dismiss a complaint for failure to state a claim, courts must likewise\n\naccept all well-pled facts in the complaint as true and interpret those allegations in the light most\n\nfavorable to the plaintiff. A complaint should not be dismissed for failure to state a claim unless it\n\nis apparent that no set of facts can be proven that would entitle the plaintiff to relief. Heinrich v.\n\nWhite, 2012 IL App (2d) 110564, ¶ 9. We conduct a de novo of the trial court’s ruling. Neppl v.\n\nMurphy, 316 Ill. App. 3d 581, 583 (2000).\n\n¶ 23 The purpose of FOIA is to make public records open to public scrutiny. Chicago Tribune\n\nCo. v. Department of Financial & Professional Regulation, 2014 IL App (4th) 130427, ¶ 20; see\n\n5 ILCS 140/1 (West 2020). As the plaintiff correctly points out, the records of public bodies are\n\nthus presumed to be subject to disclosure. 5 ILCS 140/1.2 (West 2020). With certain enumerated\n\nexceptions, 3 public bodies must make “all public records” available for inspection or copying. Id.\n\n§ 3(a). The provision requiring access to public records is applicable to any person. Id.\n\n¶ 24 Any person denied access to inspect or receive a copy of a public record may file an action\n\nseeking an injunction or declaratory relief. Id. § 11(a). If the plaintiff prevails in the action, the\n\n\n 3\n The City argues that an exemption for “[i]nformation specifically prohibited from disclosure by\nfederal or State law” is applicable here. See 5 ILCS 140/7(1)(a) (West 2020). This is so, the City contends,\nbecause the plaintiff’s letter was an improper attempt to complain about opposing counsel. Before the trial\ncourt, the City argued that this exemption applied because the letter was an improper attempt to contact\nopposing parties who were represented by counsel. While we are skeptical that either of these improprieties\nwould make the contents of the letter “information specifically prohibited from disclosure” under state or\nfederal law, we need not address this argument because we will conclude that the letter was not a “public\nrecord” as that term is defined under FOIA.\n 7\n\fcourt must award the plaintiff reasonable attorney fees and costs. Id. § 11(i). Civil penalties are\n\nalso available if the court determines that the public body willfully and intentionally violated FOIA\n\n“or otherwise acted in bad faith.” Id. § 11(j). Here, the plaintiff requested all of these remedies.\n\nWe note that because the court found that his complaint did not allege a FOIA violation, the court\n\ndid not reach the question of civil penalties. As such, although both parties address this issue, we\n\ndo not believe it is before us.\n\n¶ 25 The plaintiff argues that the court erred in dismissing his complaint because the document\n\nhe requested—a copy of his own letter to the mayor—falls within the statutory definition of a\n\n“public record,” which includes “writings [and] letters *** received by *** any public body.” See\n\nid. § 2(c). He contends that the City’s argument that a communication sent to the mayor must be\n\nshared with a quorum of the city council before it becomes a public record is contrary to the express\n\nstatutory language. In his reply brief, he argues that the cases cited by the City to support its\n\ncontention are distinguishable because they involved individual aldermen, not mayors. With no\n\nexplanation or citation to authority, he asserts that unlike an individual alderman, the office of a\n\nmayor is a public body under FOIA. We find these arguments unpersuasive.\n\n¶ 26 FOIA’s statutory definition of a “public record” is, as the plaintiff contends, rather broad.\n\nIn pertinent part, that definition includes all “writings [and] letters” that are “prepared by or for,\n\n*** received by, in the possession of, or under the control of any public body.” Id. There are two\n\nimportant limitations, however. First, the requested material must pertain “to the transaction of\n\npublic business.” Id.; see also City of Champaign, 2013 IL App (4th) 120662, ¶ 30. Second, the\n\nrecord must have been prepared or received by or be under the possession or control of a public\n\nbody as that term is defined under FOIA. 5 ILCS 140/2(c) (West 2020). For the reasons that follow,\n\nwe find that neither of these requirements is satisfied here.\n\n\n 8\n\f¶ 27 Whether a document “pertains to ‘public business’ ” is a “threshold question.” City of\n\nChampaign, 2013 IL App (4th) 120662, ¶ 32. Because FOIA does not define that term, we must\n\ngive the words their plain and ordinary meanings. Id. ¶ 31 (citing In re M.T., 221 Ill. 2d 517, 524\n\n(2006)). In City of Champaign, the Fourth District looked to the dictionary definition of the word\n\n“public” and concluded that “to qualify as a public record a communication must first pertain to\n\n‘business or community interests as opposed to private affairs.’ ” Id. (quoting Merriam-Webster’s\n\nCollegiate Dictionary 941 (10th ed. 2000)).\n\n¶ 28 Here, as we discussed earlier, the plaintiff acknowledged during his argument to the trial\n\ncourt that his letter contained complaints regarding the conduct of the attorney representing the\n\nCity in other actions filed against it by the plaintiff. Complaints concerning the conduct of\n\nopposing counsel in the plaintiff’s own litigation against the City do not involve community\n\ninterests as opposed to private affairs. As such, they do not “pertain to public business” within the\n\nmeaning of FOIA.\n\n¶ 29 We next consider whether a letter addressed to and received by the mayor is received by\n\nor under the possession or control of a “public body.” FOIA defines “public body” to include “all\n\nlegislative, executive, administrative, or advisory bodies of the State, state universities and\n\ncolleges, counties, townships, cities, villages, incorporated towns, school districts[,] and all other\n\nmunicipal corporations, boards, bureaus, committees, or commissions of the State.” 5 ILCS\n\n140/2(a) (West 2020). Notably, this definition does not include individuals. City of Champaign,\n\n2013 IL App (4th) 120662, ¶ 30; see also Korner v. Madigan, 2016 IL App (1st) 153366, ¶ 11\n\n(explaining that FOIA authorizes suit only against public bodies, not against individuals); Quinn,\n\n211 Ill. App. 3d at 812 (concluding that individual aldermen are not included in FOIA’s definition\n\nof a public body, noting that other Illinois statutes using the same term likewise do not include\n\n\n 9\n\findividuals, and citing examples of statutes that either contain no references to individual persons\n\nor distinguish between certain individuals and the public body).\n\n¶ 30 In City of Champaign, a case relied upon by the City, the appellate court found that\n\nindividual aldermen and members of a city council are not public bodies under FOIA. City of\n\nChampaign, 2013 IL App (4th) 120662, ¶ 40. In reaching this conclusion, the court pointed out\n\nthat an individual city council member “cannot conduct the business of the public body” without\n\na quorum of council members. Id. The court then went on to hold that communications that are\n\nprepared, used, received, and controlled by individual city council members might nevertheless\n\nbecome public records subject to disclosure under FOIA if they are shared during city council\n\nmeetings, “i.e., during the time the individual city council members were functioning collectively\n\nas the ‘public body.’ ” Id. ¶ 42.\n\n¶ 31 Although discussed at length by both parties, neither this aspect of the court’s holding nor\n\nits observation that individual city council members cannot act without a quorum is particularly\n\npertinent here. City of Champaign involved a journalist’s FOIA request for electronic\n\ncommunications, including text messages, that were sent and received by the mayor and city\n\ncouncil members during city council meetings using their personal devices. Id. ¶¶ 4, 43. The\n\nprimary rationale underlying the court’s decision was its concern that finding the communications\n\nat issue not subject to disclosure “would allow members of a public body, convened as the public\n\nbody, to subvert the Open Meetings Act (5 ILCS 120/1 to 7.5 (West 2010)) and FOIA requirements\n\nsimply by communicating about city business during a city council meeting on a personal\n\nelectronic device.” Id. ¶ 43. That concern is not implicated in this case. The only question in this\n\ncase is whether the mayor is a public body as that term is defined under FOIA, a question we have\n\nalready answered in the negative.\n\n\n 10\n\f¶ 32 The plaintiff contends, however, that an individual alderman is different from a mayor,\n\nthus rendering both cases the City relies upon distinguishable. We disagree.\n\n¶ 33 Both the trial court and the plaintiff are correct in noting that unlike individual aldermen,\n\nmayors do have the authority to make some decisions and take some actions unilaterally. However,\n\nthis distinction does not bring a mayor within the clear statutory definition of a public body. See\n\nGallagher v. Union Square Condominium Homeowner’s Ass’n, 397 Ill. App. 3d 1037, 1042 (2010)\n\n(refusing to read into a statute “an additional term that the legislature did not expressly include”\n\nand explaining that we must not read exceptions, limitations, or conditions into a clear and\n\nunambiguous statute).\n\n¶ 34 Significantly, FOIA defines the term “head of the public body” to include a mayor or an\n\n“individual otherwise holding primary executive and administrative authority for the public body.”\n\n5 ILCS 140/2(e) (West 2020). The statute thus clearly distinguishes between a public body and the\n\nindividual who serves as the head of a public body, such as a mayor. It is also worth noting that\n\nthe records requested in City of Champaign included messages sent to and from the mayor. City of\n\nChampaign, 2013 IL App (4th) 120662, ¶¶ 1, 4, 43. The Fourth District did not distinguish between\n\nthese messages and those sent between council members in reaching its decision. See id. ¶¶ 40-44.\n\nFor these reasons, the mayor is not a public body, and the plaintiff’s letter was not received by or\n\nunder the control of or in possession of a public body.\n\n¶ 35 Finally, as the trial court correctly pointed out, the expressly stated legislative purpose of\n\nFOIA is to provide the public with access to information. See 5 ILCS 140/1 (West 2020). Requiring\n\nthe City to provide a requestor with a copy of his or her own letter would do nothing to further this\n\npurpose. For this reason, and because the letter at issue does not fit within the statutory definition\n\nof a “public record,” we conclude that the plaintiff’s complaint did not state a claim for a FOIA\n\n\n 11\n\fviolation. We find no error in the court’s decision to dismiss his complaint. In light of this\n\nconclusion, we need not address the parties’ contentions regarding the applicability of a statutory\n\nexemption from disclosure or the appropriateness of civil penalties.\n\n¶ 36 III. CONCLUSION\n\n¶ 37 For the foregoing reasons, we affirm the judgment of the trial court.\n\n\n\n¶ 38 Affirmed.\n\n\n\n\n 12\n\f"} {"dedup_key":"2024 IL App (5th) 230247-U","dedup_key_type":"neutral_citation","neutral_citation":"2024 IL App (5th) 230247-U","case_name":"Robin W. Hickman v. Dora J. Mann","court_level":"Appellate","appellate_district":"5th","year":2024,"county":"Bond","appellate_docket":"5-23-0247","circuit_docket":"22-CH-1","published":0,"authoring_justice":"Barberis","statute":["FOIA"],"exemptions_cited":[],"public_body":"Bond County Sheriff's Department","requesting_party":"Robin W. Hickman","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The court affirmed the dismissal of a FOIA complaint where uncontradicted evidence showed no responsive documents existed. The court also held that naming the compliance officer instead of the sheriff's department was a misnomer and that subsequent production of different records did not invalidate the prior response.","best_text_source":"Court Opinions - FOIA/Hickman v. Mann, 2024 IL App (5th) 230247-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:57.752995","site_category":"Search & Production","date_decided":"2024-05-07","site_url":"/cases/2024%20IL%20App%20(5th)%20230247-U/","text_url":"/case-text/2024%20IL%20App%20(5th)%20230247-U.txt","full_text":" 2024 IL App (5th) 230247-U\n NOTICE\n NOTICE\n Decision filed 05/07/24. The\n This order was filed under\n text of this decision may be NO. 5-23-0247\n Supreme Court Rule 23 and is\n changed or corrected prior to\n not precedent except in the\n the filing of a Petition for IN THE limited circumstances allowed\n Rehearing or the disposition of\n under Rule 23(e)(1).\n the same.\n APPELLATE COURT OF ILLINOIS\n\n FIFTH DISTRICT\n______________________________________________________________________________\n\nROBIN W. HICKMAN, ) Appeal from the\n ) Circuit Court of\n Plaintiff-Appellant, ) Bond County.\n )\nv. ) No. 22-CH-1\n )\nDORA J. MANN, ) Honorable\n ) Ronald J. Foster,\n Defendant-Appellee. ) Judge, presiding.\n______________________________________________________________________________\n\n JUSTICE BARBERIS delivered the judgment of the court.\n Justices Moore and McHaney concurred in the judgment.\n\n ORDER\n\n¶1 Held: Where the uncontradicted evidence showed that no documents responsive to\n plaintiff’s Freedom of Information Act requests existed, no reversible procedural\n error occurred, and plaintiff’s incorrectly naming the compliance officer rather than\n the sheriff’s department itself was a misnomer, the circuit court properly dismissed\n plaintiff’s FOIA complaint.\n\n¶2 Plaintiff, Robin W. Hickman, sued defendant, Dora J. Mann, pursuant to the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/1 et seq. (West 2020)). He sought a declaratory judgment,\n\nan order requiring defendant to turn over certain documents, and civil penalties. Defendant, the\n\nBond County State’s Attorney, moved to dismiss. The motion was supported by an affidavit stating\n\nthat no documents responsive to plaintiff’s requests were within her possession but attaching\n\ncertain documents from the Bond County Treasurer’s office. The court granted the motion.\n\nPlaintiff appeals, contending that additional documents did exist, that a finding that all documents\n\n 1\n\fresponsive to his request had been produced did not moot his request for sanctions, and asserting\n\nvarious procedural infirmities in the proceedings. We affirm.\n\n¶3 BACKGROUND\n\n¶4 On December 19, 2021, plaintiff sent a FOIA request to the Bond County Sheriff’s Office.\n\nPlaintiff sought “[a]ll policies and rules enacting [sic] and in regard to § 5/103-2.1 of the Illinois\n\nCode of Criminal Procedure at and upon Bond County Sheriff’s Office and its employees.”\n\nDefendant, who was also the designated FOIA compliance officer for the sheriff’s department,\n\nresponded that the request was “granted,” but that no such documents existed at that agency.\n\n¶5 On January 9, 2022, plaintiff sent another FOIA request to the sheriff’s department seeking\n\n“a copy of a reasonably current list of all types or categories of records under its control. Such\n\nshall be reasonably detailed.” In response, defendant stated that the request was unduly\n\nburdensome because it would require manually searching voluminous documents. Defendant\n\nasked that plaintiff provide a timeframe.\n\n¶6 Plaintiff also sent a FOIA request to the Bond County State’s Attorney’s office, requesting\n\n“all records of funds, receipt, obligation and use of such funds and all payroll records of this office\n\nwithin the last twelve (12) months or since January 1 of 2021, whichever is longest and copy of\n\nsuch.” In response, defendant again stated that the request was “granted,” but that no such\n\ndocuments existed at her agency.\n\n¶7 Plaintiff thereafter sued defendant, seeking a declaratory judgment that she violated the\n\nFOIA, an injunction requiring her to produce the requested documents, and statutory penalties.\n\nDefendant did not initially appear, and, on July 15, 2022, plaintiff moved for a default judgment.\n\nOn July 26, 2022, defendant requested an extension of time to answer or otherwise plead, asserting\n\n\n\n\n 2\n\fthat she had been occupied with “urgent and emergency matters.” The court granted the motion,\n\nfinding that she had established good cause.\n\n¶8 On August 16, 2022, defendant moved to dismiss the complaint pursuant to section 2-\n\n619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2020)). The motion was\n\nsupported by the affidavit of Mary A. Essenpreis who had served as the sheriff’s administrative\n\nassistant for 14 years. Essenpreis averred that her duties included maintaining the sheriff’s\n\ndepartment’s records complying with FOIA requests. She also stated that, after receiving\n\nplaintiff’s first FOIA request, she thoroughly reviewed documents maintained by the department\n\nand concluded that no documents responsive to the request existed.\n\n¶9 Essenpreis also assisted with the response to plaintiff’s second request. Again, after\n\nconducting a thorough review, she concluded that it was not the sheriff’s practice to create or\n\nmaintain a list of all of the documents under his control, and thus no such list existed.\n\n¶ 10 With respect to the third request, the only one directed to the state’s attorney’s office,\n\ndefendant reiterated that her office did not maintain financial records, and that any such documents\n\nwere under the control of the county treasurer. However, to satisfy plaintiff’s request, she attached\n\nthe requested records from the treasurer’s office.\n\n¶ 11 On August 30, 2022, the case was called for hearing, and plaintiff failed to appear. His\n\nmotion for default was denied as moot. He was given 30 days to respond to the motion to dismiss.\n\nPlaintiff filed a response and, following a hearing, the court granted the motion to dismiss. Plaintiff\n\nfiled a motion to reconsider the dismissal, which the court denied. Plaintiff timely appealed.\n\n¶ 12 ANALYSIS\n\n¶ 13 Plaintiff contends that the circuit court erred by dismissing his complaint. We disagree.\n\n\n\n\n 3\n\f¶ 14 The Illinois FOIA provides that “[e]ach public body shall make available to any person for\n\ninspection or copying all public records.” 5 ILCS 140/3(a) (West 2020). The “ ‘purpose of the\n\nFOIA is to open governmental records to the light of public scrutiny.’ ” Southern Illinoisan v.\n\nIllinois Department of Public Health, 218 Ill. 2d 390, 415-16 (2006) (quoting Bowie v. Evanston\n\nCommunity Consolidated School District No. 65, 128 Ill. 2d 373, 378 (1989)). Accordingly, under\n\nthe FOIA, “ ‘public records are presumed to be open and accessible.’ ” Id. (quoting Lieber v. Board\n\nof Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997)).\n\n¶ 15 “Any person denied access to inspect or copy any public record by a public body may file\n\nsuit for injunctive or declaratory relief.” 5 ILCS 140/11(a) (West 2020). In such an action, the\n\ncourt reviews de novo whether the records are subject to disclosure. Id. § 11(f). If the court finds\n\nthat a public body “willfully and intentionally failed to comply with this Act, or otherwise acted\n\nin bad faith,” the court shall also impose civil penalties of not less than $2500 nor more than $5000\n\nfor each occurrence. Id. § 11(j).\n\n¶ 16 Section 2-619(a)(9) permits involuntary dismissal of a complaint that “is barred by other\n\naffirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9)\n\n(West 2020). In reviewing a section 2-619 dismissal, we consider the pleading and any supporting\n\ndocuments interpreted in the light most favorable to the nonmoving party. Walker v. Bruscato,\n\n2019 IL App (2d) 170775, ¶ 47.\n\n¶ 17 The FOIA does not compel public bodies to turn over information that they do not normally\n\nretain. Barner v. Fairburn, 2019 IL App (3d) 180742, ¶ 12. Nor does it require the creation of a\n\nnew record. Chicago Tribune Co. v. Department of Financial & Professional Regulation, 2014 IL\n\nApp (4th) 130427, ¶¶ 35-37. The nonexistence of the requested documents is an affirmative\n\ndefense to a complaint based on the FOIA. Walker, 2019 IL App (2d) 170775, ¶ 47.\n\n\n 4\n\f¶ 18 Here, with regard to plaintiff’s first two requests directed to the sheriff’s department,\n\nEssenpreis’s affidavit established that the department did not maintain any documents responsive\n\nto the request. As to the third request, directed to the state’s attorney’s office, defendant represented\n\nthat her office did not maintain such records but attached documents obtained from the county\n\ntreasurer’s office. Thus, the undisputed evidence established that no additional documents\n\nresponsive to plaintiff’s requests existed.\n\n¶ 19 Plaintiff insists that documents related to his first request must exist because “§ 5/103-2.1\n\nis binding upon Bond County Sheriff’s Office.” Section 103-2.1 of the Code of Criminal Procedure\n\nof 1963 is entitled “When statements by accused may be used.” 725 ILCS 5/103-2.1 (West 2020).\n\nIt contains requirements for recording custodial interrogations in certain situations. See id. It does\n\nnot require any agency to promulgate a written policy for compliance. The mere facts that the\n\nstatute exists and applies to the sheriff’s department do not prove that the department enacted\n\n“policies and rules” for compliance.\n\n¶ 20 Plaintiff further contends that such documents must exist because he sent a similar request\n\nto the Clinton County sheriff’s department and received a response. That a sheriff’s department in\n\na different county has chosen to enact a written policy does not prove that Bond County has also\n\ndone so.\n\n¶ 21 In his reply brief, plaintiff argues, for the first time, that section 103-2.1 requires the\n\npreservation of certain recordings of interrogations. He also cites various administrative\n\nregulations providing that the Illinois Law Enforcement Training Standards Board is to provide\n\ntraining and standards for conducting homicide investigations. These arguments are forfeited.\n\nPoints not argued in an initial brief “are forfeited and shall not be raised in the reply brief, in oral\n\nargument, or on petition for rehearing.” Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020).\n\n\n 5\n\f¶ 22 In any event, plaintiff has not requested any recordings of interrogations. He requested only\n\n“policies and rules.” Thus, whether the department was required to preserve recordings of\n\ninterrogations has no bearing on whether it maintained written policies and rules. Further, we fail\n\nto see the relevance of the Illinois Law Enforcement Training Standards Board’s obligation to\n\nprovide training in conducting homicide investigations to whether the Bond County Sheriff’s\n\nDepartment maintained a written policy governing compliance with section 103-2.1. Plaintiff is\n\nfree to request records from the training board if he wishes.\n\n¶ 23 Plaintiff argues that documents responsive to his second request must exist because FOIA\n\nspecifically requires agencies to maintain a list of “reasonably current list of all types or categories\n\nof records under its control.” 5 ILCS 140/5 (West 2020). However, as defendant points out, even\n\nthough FOIA directs public bodies to maintain such a list, the failure to do so is not actionable\n\nunder the statute. Walker, 2019 IL App (2d) 170775, ¶¶ 43-47. Regardless of plaintiff’s\n\nspeculation, the undisputed evidence was that such a list did not exist.\n\n¶ 24 Plaintiff further contends that defendant should be estopped from asserting that the list of\n\nrecords did not exist because the initial response stated that compliance would be too burdensome.\n\nDefendant responds that the responses are consistent because the original response meant that it\n\nwould be too burdensome to compile a list that did not exist. Semantics aside, FOIA provides that\n\nthe circuit court decides de novo whether records must be disclosed. Accordingly, new or different\n\nanswers in a summary judgment motion are not waived merely because they were not asserted in\n\nthe initial response. Chicago Tribune Co., 2014 IL App (4th) 130427, ¶ 26.\n\n¶ 25 Plaintiff further contends that the court should have struck Essenpreis’s affidavit because\n\nshe is not the designated FOIA compliance officer. Defendant responds that the statute permits a\n\n\n\n\n 6\n\fcompliance officer to designate others to fulfill their duties. Specifically, section 3.5(a) of FOIA\n\nstates as follows:\n\n “(a) Each public body shall designate one or more officials or employees\n\n to act as its Freedom of Information officer or officers. Except in instances when\n\n records are furnished immediately, Freedom of Information officers, or their\n\n designees, shall receive requests submitted to the public body under this Act, ensure\n\n that the public body responds to requests in a timely fashion, and issue responses\n\n under this Act. Freedom of Information officers shall develop a list of documents\n\n or categories of records that the public body shall immediately disclose upon\n\n request.” 5 ILCS 140/3.5(a) (West 2020).\n\n¶ 26 The statute’s plain language thus allows “Freedom of Information officers, or their\n\ndesignees” to perform the required duties. This is logical given that the compliance officer need\n\nnot be personally familiar with the records in question. Here, defendant was not part of the sheriff’s\n\noffice and would not be expected to be familiar with the sheriff’s department’s records. Essenpreis,\n\non the other hand, averred that she had been the sheriff’s administrative assistant for 14 years and\n\nthat her duties included maintaining the department’s records.\n\n¶ 27 Accepting plaintiff’s position that only the designated compliance officer can attest that a\n\ngiven record does not exist would lead to absurd results. See People v. Brown, 2020 IL 124100,\n\n¶ 30 (courts avoid construing a statute leading to an absurd result, if possible). Given that a FOIA\n\nrequest must be evaluated as of the time the request was made, a compliance officer who was not\n\npersonally responsible for keeping the records in question would never be able to prove that the\n\nrecords did not exist at the time of the request.\n\n\n\n\n 7\n\f¶ 28 Plaintiff further contends that the court erred in not striking defendant’s motion as\n\nuntimely. However, Illinois Supreme Court Rule 183 provides that the court, for good cause, “may\n\nextend the time for filing any pleading or the doing of any act which is required by the rules to be\n\ndone within a limited period, either before or after the expiration of the time.” Ill. S. Ct. R. 183\n\n(eff. Feb. 16, 2011). Absent an abuse of discretion, the decision of the circuit court on this issue\n\nwill not be disturbed. Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 354 (2007).\n\n¶ 29 Here, after the 30-day period to answer the complaint, and after plaintiff had moved for a\n\ndefault judgment, defendant sought leave to file a motion to dismiss, alleging that she was busy\n\nwith “urgent and emergency matters.” The court granted the motion. As plaintiff points to no\n\nevidence that defendant was not busy with urgent and emergency matters during this time, we\n\ncannot say that the court abused its discretion.\n\n¶ 30 In any event, plaintiff cannot show that he was prejudiced by the court’s decision. The\n\ncourt found that no additional records responsive to plaintiff’s requests exist, and he has not\n\nconvinced us otherwise. The court could not, by default, order defendant to produce records that\n\ndo not exist. See Chicago Tribune Co., 2014 IL App (4th) 130427, ¶¶ 35-37 (FOIA does not\n\nrequire an agency to create a new record).\n\n¶ 31 Plaintiff also contends that he may be awarded sanctions even if all of the existing\n\ndocuments were eventually produced. Generally, the purpose of sanctions is to coerce compliance,\n\nnot to punish the dilatory party. Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 123 (1998)\n\n(discussing discovery sanctions). Plaintiff sent his initial request to the Bond County Sheriff’s\n\nDepartment on January 9, 2022. By November 2022, he had received all the responsive documents\n\nin existence. The court found that most of the requested documents never existed. Defendant\n\nvoluntarily produced the budgetary documents that were in the possession of the county treasurer.\n\n\n 8\n\fPlaintiff points to no evidence that defendant willfully withheld records that were subject to\n\ndisclosure.\n\n¶ 32 We note briefly defendant’s alternative argument for affirmance: that plaintiff sued the\n\nwrong party. Citing Korner v. Madigan, 2016 IL App (1st) 153366, ¶ 11, she contends that the\n\npublic body to whom a request is directed is the appropriate defendant in a lawsuit alleging a FOIA\n\nviolation and that a suit against the individual FOIA officer is inappropriate. In his reply brief,\n\nplaintiff responds that defendant forfeited this issue by failing to raise it in the trial court.\n\n¶ 33 We find that this is a case of misnomer rather than plaintiff naming the wrong party. Section\n\n2-401(b) of the Code of Civil Procedure provides:\n\n “(b) Misnomer of a party is not a ground for dismissal but the name of any party\n\n may be corrected at any time, before or after judgment, on motion, upon any terms and\n\n proof that the court requires.” 735 ILCS 5/2-401(b) (West 2020).\n\n¶ 34 This section prevents a party from forcing the dismissal of a case due to a mistake in the\n\nname of a party. U.S. Bank National Ass’n v. Johnston, 2016 IL App (2d) 150128, ¶¶ 40-41.\n\nHowever, there is a difference between misnomer and mistaken identity: the former occurs when\n\na plaintiff files an action against the correct party under an incorrect name; the latter occurs when\n\na plaintiff names the wrong party. Id. The effect of misnomer is that the court acquires personal\n\njurisdiction over the party who is called by an incorrect name but receives notice of the lawsuit.\n\nId. Whether a case involves a misnomer or mistaken identity “depends on the intent of the parties,\n\nbut a plaintiff’s subjective intent is not controlling in the face of objective manifestations indicating\n\nan intent to sue another.” (Internal quotation marks omitted.) Pennymac Corp. v. Jenkins, 2018\n\nIL App (1st) 171191, ¶ 25.\n\n\n\n\n 9\n\f¶ 35 Here, defendant, in addition to serving as the county state’s attorney, was the FOIA\n\ncompliance officer for both agencies. Moreover, as the state’s attorney, she was responsible for\n\nrepresenting the sheriff’s department in litigation. Because its attorney was served, the sheriff’s\n\ndepartment had actual notice of the litigation. Based on the complaint’s allegations and the relief\n\nsought, plaintiff clearly intended to sue the agencies from whom the records were sought but\n\nmistakenly named defendant, the FOIA officer. Defendant clearly understood this as well. She\n\nfiled a motion to dismiss on behalf of both agencies and supported it with the affidavit of\n\nEssenpreis, who was the records custodian for the sheriff’s department.\n\n¶ 36 Finally, plaintiff contends that the circuit court erred in denying his motion to reconsider.\n\nAccording to plaintiff, on November 17, 2022, he sent another FOIA request to defendant, this\n\ntime seeking her budget for the year 2022. In response, defendant provided the requested budget.\n\nPlaintiff claims that defendant’s fulfillment of his later FOIA request demonstrates that she failed\n\nto fully comply with his earlier request.\n\n¶ 37 This argument lacks merit for two reasons. First, plaintiff’s first FOIA request did not ask\n\nfor the state’s attorney’s budget. Rather, he sought “records of funds, receipt, obligation and use\n\nof such funds and all payroll records of this office within the last twelve (12) months or since\n\nJanuary of 2021, whichever is longest.” Thus, the request sought a record of funds actually\n\nreceived and used since January of 2021. The FOIA request of November 17, 2022, by contrast,\n\nasked for the agency’s budget for 2022. The November 17, 2022, FOIA request sought a different\n\nrecord, and therefore, defendant’s response does not demonstrate that she violated FOIA by not\n\nturning over the budget in response to the earlier request. But even if plaintiff’s earlier request\n\ncould be construed as having sought defendant’s budget, he has since received it, and therefore,\n\nthe claim is moot. See Turner v. Joliet Police Department, 2019 IL App (3d) 170819, ¶¶ 12-13.\n\n\n 10\n\f¶ 38 CONCLUSION\n\n¶ 39 For the reasons stated, we affirm the circuit court’s judgment.\n\n¶ 40 Affirmed.\n\n\n\n\n 11\n\f"} {"dedup_key":"2025 IL App (1st) 220565-U","dedup_key_type":"neutral_citation","neutral_citation":"2025 IL App (1st) 220565-U","case_name":"Charles Graham v. Chicago Police Department","court_level":"Appellate","appellate_district":"1st","year":2025,"county":"Cook","appellate_docket":"1-22-0565","circuit_docket":"09 CR 21560","published":0,"authoring_justice":"Van Tine","statute":["FOIA"],"exemptions_cited":[],"public_body":"Chicago Police Department","requesting_party":"Charles Graham","disposition":"remanded","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court vacated the circuit court's dismissal of the defendant's FOIA-based complaint for declaratory and injunctive relief. The court held that the circuit court should have transferred the case to the proper division rather than dismissing it, and remanded for further proceedings.","best_text_source":"Court Opinions - Flagged for Review/People v. Graham, 2025 IL App (1st) 220565-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":1,"enriched_at":"2026-07-13T18:10:57.753100","site_category":"FOIA Response Process","date_decided":"2025-03-31","site_url":"/cases/2025%20IL%20App%20(1st)%20220565-U/","text_url":"/case-text/2025%20IL%20App%20(1st)%20220565-U.txt","full_text":" 2025 IL App (1st) 220565-U\n No. 1-22-0565\n Order filed March 31, 2025\n Second Division\n\n\n NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the\n limited circumstances allowed under Rule 23(e)(1).\n ______________________________________________________________________________\n IN THE\n APPELLATE COURT OF ILLINOIS\n FIRST DISTRICT\n ______________________________________________________________________________\n THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the\n ) Circuit Court of\n Plaintiff-Appellee, ) Cook County.\n )\n v. ) No. 09 CR 21560\n )\n CHARLES GRAHAM, ) Honorable\n ) Stanley Sacks,\n Defendant-Appellant. ) Judge, presiding.\n\n\n\n PRESIDING JUSTICE VAN TINE delivered the judgment of the court.\n Justices McBride and Ellis concurred in the judgment.\n\n ORDER\n\n¶1 Held: We vacate the denial of defendant’s pleading seeking declaratory judgment and\n injunctive relief and remand for further proceedings.\n\n¶2 Defendant Charles Graham appeals pro se from the circuit court’s order denying his pro se\n\ncomplaint for declaratory judgment and injunctive relief filed pursuant to section 11 of the\n\nFreedom of Information Act (FOIA) (5 ILCS 140/11 (West 2022)) and section 2-701 of the Code\n\nof Civil Procedure (Code) (735 ILCS 5/2-701 (West 2022)), concerning his requests for\n\fNo. 1-22-0565\n\n\ninformation from defendant, the Chicago Police Department (CPD). On appeal, defendant and the\n\nState request remand for further proceedings. We vacate the denial of defendant’s complaint for\n\ndeclaratory judgment and injunctive relief, and remand for further proceedings.\n\n¶3 Following a bench trial, defendant was found guilty of two counts of aggravated sexual\n\nassault and sentenced to consecutive terms of nine years in prison. We affirmed on direct appeal.\n\nPeople v. Graham, 2013 IL App (1st) 102098-U.\n\n¶4 Defendant subsequently filed pro se a petition for relief from judgment pursuant to section\n\n2-1401 of the Code (735 ILCS 5/2-1401 (West 2022)), which the circuit court denied. We granted\n\ncounsel on appeal leave to withdraw and affirmed the denial of the petition. People v. Graham,\n\nNo. 1-23-1835 (2024) (unpublished summary order under Illinois Supreme Court Rule 23(c)).\n\n¶5 On October 29, 2021, using a standardized motion form, defendant mailed from prison the\n\ninstant pro se complaint for declaratory judgment and injunctive relief, which referenced his\n\nunderlying criminal case number and listed the “Department of Police—City of Chicago” as\n\ndefendant. 1 Defendant alleged that CPD violated FOIA by failing to produce records relating to\n\nhis conviction or otherwise answer his requests. Specifically, defendant sought an order\n\ncompelling CPD to produce (1) the initial complaint the victim signed on November 9, 2009; (2)\n\na redacted copy of the “Police report, Incident report for Misdemeanor Domestic Battery” from\n\nNovember 9, 2009; and (3) a redacted copy of the “Police report, Incident report for Misdemeanor\n\nDomestic Battery” from November 6, 2009. Graham attached (1) his FOIA requests from August\n\n12, 2021, and September 1, 2021; (2) a certified mail receipt for a delivery to CPD; and (3) a\n\n\n\n\n 1\n The motion was stamped received on January 14, 2022.\n\n -2-\n\fNo. 1-22-0565\n\n\ncertificate of service stating that he placed a copy of his complaint in the prison mail system on\n\nOctober 29, 2021. The certificate of service states that a copy of the complaint was sent to CPD.\n\n¶6 The complaint was assigned to the criminal division. On February 18, 2022, the matter was\n\ntransferred within the criminal division to the judge who presided over Graham’s underlying\n\ncriminal case. The half sheet reflects that on March 15, 2022, the court dismissed Graham’s\n\ncomplaint and wrote “off call.”\n\n¶7 In defendant’s pro se notice of appeal, he stated that the “[t]he criminal court entered a\n\njudgment in this civil action,” which deprived him of “the right to know the nature of the\n\nproceeding which impair[ed] [his] ability to act promptly and intelligently.” 2 In his brief on appeal,\n\ndefendant requests remand for further proceedings pursuant to Illinois Supreme Court Rule 412\n\n(eff. March 1, 2001), Brady v. Maryland, 373 U.S. 83 (1963), and FOIA, asserting that the circuit\n\ncourt failed to adequately examine his claim that the State and Chicago Police Department failed\n\nto “disclose requested records material to guilt or punishment.”\n\n¶8 The State represents that defendant appears to have filed duplicative or overlapping causes\n\nof action regarding his FOIA requests. Relying on People v. Velazquez, 2020 IL App (1st) 181958,\n\nthe State requests that we vacate the denial of the civil action at issue here for declaratory judgment\n\nand injunctive relief and remand with instructions to transfer the case to the Presiding Judge for\n\neither reassignment to the appropriate division of the circuit court or disposition as deemed proper.\n\n\n\n\n 2\n The Office of the State Appellate Defender was appointed to represent defendant on appeal, but\ncounsel later determined that the office was not authorized to represent him in civil proceedings and\nrequested leave to withdraw. On August 10, 2022, this court granted counsel’s motion to withdraw.\nDefendant thereafter filed a pro se brief.\n\n\n\n -3-\n\fNo. 1-22-0565\n\n\n¶9 In Velazquez, the defendant filed a motion for injunctive or declaratory relief in the criminal\n\ndivision and requested relief pursuant to section 11(f) of FOIA. Id. ¶¶ 10, 17. The circuit court\n\nconcluded, however, that the action was filed in the wrong division and dismissed the action,\n\nbelieving it lacked jurisdiction. Id. ¶ 11. On appeal, the defendant acknowledged he should have\n\nfiled his action in the chancery division as it was a motion for injunction or declaratory relief (Cook\n\nCounty Cir. Ct. G.O. 1.2,2.1(b)(1) (Jan. 1, 2008)), and argued the action should have been\n\ntransferred for reassignment rather than dismissed. Velazquez, 2020 IL App (1st) 181958, ¶¶ 1, 17.\n\n¶ 10 We agreed, stating a case filed in the wrong division “does not affect a circuit judge’s\n\nauthority” and should not be dismissed. Id. ¶¶ 15-16. Rather, pursuant to the general orders of the\n\nCook County circuit court, if the circuit court determines an action was filed in the wrong division\n\nof the court, it “ ‘shall be transferred to the Presiding Judge of the division or district in which it is\n\npending for the purpose of transferring the action to the Presiding Judge of the proper division or\n\ndistrict, or for reassignment to the proper section.’ “ Id. ¶ 16 (quoting Cook County Cir. Ct. G.O.\n\n1.3(c) (Aug. 1, 1996)). Thus, instead of dismissing the defendant’s action, the circuit court should\n\nhave transferred the matter to the Presiding Judge, who has the general administrative authority to\n\ntransfer the matter to another division in the circuit court. Id. ¶¶ 15, 17. We therefore vacated the\n\ncircuit court's dismissal and remanded the matter so the circuit court could transfer the defendant's\n\naction to the Presiding Judge. Id. ¶¶ 17, 20.\n\n¶ 11 Here, as in Velazquez, defendant filed his complaint for injunctive or declaratory relief in\n\nthe criminal division, with defendant and the State correctly pointing out on appeal that he should\n\nhave filed it in the chancery division (Cook County Cir. Ct. G.O. 1.2,2.1(b)(1) (Jan. 1, 2008)).\n\nRather than transfer the action to the Presiding Judge for reassignment, the circuit court dismissed\n\n\n\n -4-\n\fNo. 1-22-0565\n\n\ndefendant’s complaint. Therefore, following Velazquez, we vacate the circuit court’s dismissal of\n\nthe complaint and remand the matter so the circuit court can transfer defendant’s action to the\n\nPresiding Judge for reassignment or disposition as deemed proper. Velazquez, 2020 IL App (1st)\n\n181958, ¶ 17.\n\n¶ 12 For the foregoing reasons, the judgment of the circuit court is vacated, and the cause\n\nremanded for further proceedings.\n\n¶ 13 Vacated and remanded.\n\n\n\n\n -5-\n\f"} {"dedup_key":"2025 IL App (1st) 231135","dedup_key_type":"neutral_citation","neutral_citation":"2025 IL App (1st) 231135","case_name":"Taylor v. Cook County State’s Attorney’s Office","court_level":"Appellate","appellate_district":"1st","year":2025,"county":"Taylor v. Cook","appellate_docket":"1-23-1135","circuit_docket":"22-CH-7602","published":1,"authoring_justice":"Walker","statute":["FOIA"],"exemptions_cited":["7(1)(d)(i)"],"public_body":"Cook County State’s Attorney’s Office","requesting_party":"Jamal Taylor","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that the State's Attorney's Office failed to meet its burden of proof under FOIA by relying on conclusory affidavits to justify withholding records. The case was remanded with instructions for the public body to provide a detailed index and specific justification for why disclosure would interfere with pending law enforcement proceedings.","best_text_source":"Court Opinions - FOIA/Taylor v. CCSAO 2025 IL App (1st) 231135.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:57.753135","site_category":"FOIA Response Process","date_decided":"2025-06-20","site_url":"/cases/2025%20IL%20App%20(1st)%20231135/","text_url":"/case-text/2025%20IL%20App%20(1st)%20231135.txt","full_text":" Digitally signed by\n Illinois Supreme\n Court - Reporter of\n Decisions\n Illinois Official Reports Reason: I attest to the\n accuracy and\n integrity of this\n document\n Appellate Court Date: 2026.03.26\n 12:39:49 -05'00'\n\n\n\n\n Taylor v. Cook County State’s Attorney’s Office, 2025 IL App (1st) 231135\n\n\n\nAppellate Court JAMAL TAYLOR, Plaintiff-Appellant, v. THE COOK COUNTY\nCaption STATE’S ATTORNEY’S OFFICE, Defendant-Appellee.\n\n\n\nDistrict & No. First District, Sixth Division\n No. 1-23-1135\n\n\n\nFiled June 20, 2025\n\n\n\nDecision Under Appeal from the Circuit Court of Cook County, No. 22-CH-7602; the\nReview Hon. Thaddeus L. Wilson, Judge, presiding.\n\n\n\nJudgment Reversed and remanded with directions.\n\n\nCounsel on Matthew Topic, Josh Loevy, Merrick Wayne, and Shelley Geiszler, of\nAppeal Loevy & Loevy, of Chicago, for appellant.\n\n Eileen O’Neill Burke, State’s Attorney, of Chicago (Cathy McNeil\n Stein, Jonathon D. Byrer, Paul Fangman, and Brett D. Schweinberg,\n Assistant State’s Attorneys, of counsel), for appellee.\n\n\n\nPanel JUSTICE C.A. WALKER delivered the judgment of the court, with\n opinion.\n Presiding Justice Tailor and Justice Gamrath concurred in the\n judgment and opinion.\n\f OPINION\n\n¶1 In 2019, plaintiff-appellant Jamal Taylor filed a postconviction petition claiming actual\n innocence based on newly discovered evidence. On May 29, 2022, Taylor submitted two\n records requests under Illinois’s Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq.\n West 2022)) to defendant-appellee the Cook County State’s Attorney’s Office (CCSAO). The\n CCSAO claimed the records Taylor requested were exempt from disclosure under FOIA\n because his postconviction proceedings were pending. Taylor initiated an action in the circuit\n court, and both parties moved for summary judgment. The court granted CCSAO’s motion for\n summary judgment and denied Taylor’s, finding disclosure would interfere with pending law\n enforcement proceedings under FOIA section 7(1)(d)(i) (id. § 7(1)(d)(i)). On appeal, Taylor\n argues CCSAO failed to prove the requested records were exempt. For the following reasons,\n we reverse the circuit court’s order. On remand, we order CCSAO to comply with their burden\n under FOIA to produce the requested documents or justify application of section 7(1)(d)(i) by\n preparing an index and detailed affidavit explaining why disclosure of each document would\n interfere with pending or reasonably contemplated law enforcement proceedings.\n\n¶2 I. BACKGROUND\n¶3 In 2006, following a jury trial, the circuit court convicted Taylor of, inter alia, one count\n of first degree murder and sentenced him to 55 years imprisonment under case No. 04-CR-\n 01554-01. On February 21, 2019, Taylor filed, with the circuit court, a motion to file a\n successive postconviction petition. The circuit court granted the motion and proceeded with\n Taylor’s petition. On May 22, 2022, Taylor submitted two FOIA requests to CCSAO, seeking\n (1) “any and all subpoenas and warrants” and (2) “the entire case file” for case No. 04-CR-\n 01554-01. On June 9, 2022, CCSAO denied both requests, stating the records requested were\n exempt under FOIA section 7(1)(d)(ii) (id. § 7(1)(d)(ii)) as they “interfere with active\n administrative enforcement proceedings.”\n¶4 On August 4, 2022, Taylor filed a complaint against CCSAO, alleging that the office\n willfully and intentionally violated FOIA by failing to adequately search for records responsive\n to his requests. While his complaint was pending, Taylor filed a motion in his postconviction\n proceeding to compel the production of records and subpoenas related to his case. The\n postconviction court denied that motion on November 17, 2022. Taylor then moved for partial\n summary judgment in the FOIA matter on February 2, 2023, arguing CCSAO did not prove\n the requested records were exempt from disclosure. CCSAO filed a cross motion for summary\n judgment on March 1, 2023. In its motion, CCSAO argued that the requested records would\n “interfere with a pending law enforcement proceeding” under FOIA section 7(1)(d)(i). CCSAO\n alleged that even if a postconviction proceeding is by itself not a “law enforcement\n proceeding,” Taylor’s requests are essentially a discovery request for his pending\n postconviction matter and cannot subvert the limited discovery rules under the Post-Conviction\n Hearing Act (725 ILCS 5/122-1 et seq. (West 2022)).\n¶5 The record does not indicate that CCSAO submitted any documents to the circuit court for\n inspection. In their motion, CCSAO produced an affidavit from FOIA officer Jeanene Booker.\n In her affidavit, Ms. Booker states she received both of Taylor’s FOIA requests in May 2022.\n Based on her knowledge and experience as a FOIA officer, Ms. Booker states she knew the\n responsive records would likely be within the special litigation unit, and she consulted with\n\n -2-\n\f them accordingly. Ms. Booker then contacted Assistant State’s Attorney Carol Rogala\n regarding the requested records. Attorney Rogala informed Ms. Booker that the records were\n under review as part of ongoing postconviction proceedings. CCSAO then denied Taylor’s\n requests pursuant to FOIA section 7(1)(d)(i).\n¶6 On May 31, 2023, the circuit court granted CCSAO’s motion for summary judgment and\n denied Taylor’s motion. In its order, the court likened the matter to National Labor Relations\n Board v. Robbins & Tire Co., 437 U.S. 214 (1978), where the United States Supreme Court\n considered whether the National Labor Relations Board properly refused to disclose prior\n statements of witnesses from whom they intended to call during a hearing. The board claimed\n disclosure of the statements would “interfere with enforcement proceedings” as stated in\n exemption 7(A) of the federal Freedom of Information Act (federal FOIA) (5 U.S.C.\n § 552(b)(7)(A) (1976)). Robbins, 437 U.S. at 216-17. The United States Supreme Court\n explained that disclosure of the statements ahead of the hearing would change the governing\n discovery rules as posited by the National Labor Relations Act (28 U.S.C. § 158(a)(1) (1976))\n and force the board to alter its trial strategy through mechanisms likely to cause substantial\n delays. Robbins, 437 U.S. at 236-37.\n¶7 Here, the circuit court noted that requiring disclosure of records in the same case Taylor\n filed a postconviction petition in would undermine the discretion of the court in that case to\n rule on discovery matters. This appeal followed.\n\n¶8 II. JURISDICTION\n¶9 Taylor appeals the circuit court’s order of May 31, 2023, and filed his timely appeal on\n June 22, 2023. This court has jurisdiction to hear this appeal pursuant to Illinois Supreme Court\n Rule 303(a) (eff. July 1, 2017).\n\n¶ 10 III. ANALYSIS\n¶ 11 When parties file cross motions for summary judgment, they concede that no material\n questions of fact exist and invite the court to decide the remaining questions of law based on\n the record. Pielet v. Pielet, 2012 IL 112064, ¶ 28. However, the mere filing of cross motions\n for summary judgment neither establishes that there is no issue of material fact nor obligates a\n court to render summary judgment. Id. Summary judgment is proper when “the pleadings,\n depositions, and admissions on file, together with the affidavits, if any, show that there is no\n genuine issue as to material fact and that the moving party is entitled to judgment as a matter\n of law.” 735 ILCS 5/2-1005(c) (West 2022). We review the circuit court’s decision as to cross-\n motions for summary judgment de novo. Schroeder v. Sullivan, 2018 IL App (1st) 163210,\n ¶ 25.\n¶ 12 On appeal, Taylor argues that (1) section 7(1)(d)(i) of FOIA does not allow for a\n categorical withholding of his case file, (2) CCSAO cannot prove, at the time of denial, that\n his requests would have interfered with the postconviction matter, and (3) his postconviction\n matter is not a “law enforcement” proceeding as contemplated by section 7(1)(d)(i). All records\n in the custody or possession of a public body are presumed to be open to inspection or copying.\n 5 ILCS 140/1.2 (West 2022). Any public body asserting an exemption must prove by clear and\n convincing evidence that the withheld records are exempt. Id. Section 7(1) states that when a\n request is made to inspect or copy a public record that contains information exempt from\n disclosure, but also contains information not exempt, the public body may elect to redact the\n\n -3-\n\f exempt information. Id. § 7(1). Subject to this requirement, section 7(1)(d)(i) states that records\n in the possession of any law enforcement or correctional agency are exempt from disclosure\n but only to the extent that disclosure would interfere with pending law enforcement\n proceedings conducted by any law enforcement agency that is the recipient of the request. Id.\n § 7(1)(d)(i).\n¶ 13 The office of state’s attorney is considered a “public body” for purposes of FOIA and, as\n such, they must make their public records available for inspection and copying. Nelson v.\n Kendall County, 2014 IL 116303, ¶ 27. If a party seeking disclosure challenges the denial at\n the circuit court, the public body must provide a detailed justification for its claim of exemption\n and address the requested documents specifically and in a manner that allows for adequate\n adversary testing. Illinois Education Ass’n v. Illinois State Board of Education, 204 Ill. 2d 456,\n 464 (2003). If the public body contesting disclosure can prove that a requested document falls\n within a category specifically exempted in section 7, the document is exempt from disclosure.\n Ballew v. Chicago Police Department, 2022 IL App (1st) 210715, ¶ 17. As previously stated,\n the public body asserting an exemption must prove by clear and convincing evidence that the\n withheld documents are exempt. Id. A public body may meet its burden through affidavits in\n which case the court need not conduct an in camera inspection of the withheld documents.\n Kelly v. Village of Kenilworth, 2019 IL App (1st) 170780, ¶ 23. An affidavit is insufficient if\n the public body presents claims that are conclusory, overly vague, or sweeping or that merely\n recite statutory standards. Id. ¶ 24.\n¶ 14 Taylor argues that the circuit court erred in likening this matter to Robbins. In Robbins, the\n United States Supreme Court reviewed exemption 7(A) of the federal FOIA, which allowed\n the nondisclosure of “investigatory records compiled for law enforcement purposes, but only\n to the extent that the production of such records would[ 1] *** interfere with enforcement\n proceedings.” (Internal quotation marks omitted.) Robbins, 437 U.S. at 223. Taylor points to\n Kelly, 2019 IL App (1st) 170780, ¶ 46, where this court noted that the federal FOIA may allow\n for generic determinations with respect to the interference exemption, but Illinois’s FOIA did\n not.\n¶ 15 Taylor’s argument has merit. In Kelly, this court noted while Illinois courts frequently\n consult federal FOIA jurisprudence to resolve questions on Illinois’s FOIA, key differences lie\n between the two statutes. Id. ¶ 43. The Kelly court acknowledges that while the interference\n exception in the federal FOIA may allow the government to justify its withholdings by\n reference to generic categories of documents, the Illinois legislature clearly chose to handle\n records in a different manner. Id. ¶ 46. While a public body may prefer to claim exemptions\n over their entire files, rather than sift through thousands of documents to redact exempt matters,\n section 7(1)(d) does not authorize this approach. Id. ¶ 39. In a situation such as this, CCSAO\n could raise an “undue burden” exemption under FOIA section 3(g) (5 ILCS 140/3(g) (West\n 2018)) or “be prepared to make the extensive redactions required by section 7(1)(d).” Kelly,\n 2019 IL App (1st) 170780, ¶ 49.\n\n 1\n Congress amended section 552(b)(7) of title 5 of the United States Code in 1986, replacing the\n word “would” with “could.” See Freedom of Information Reform Act of 1986, Pub. L. 99-570,\n § 1802(a), 100 Stat. 3207 (codified at 5 U.S.C. § 552(b)(7)). Section 7(1)(d)(i) of Illinois’s FOIA retains\n the word “would,” similar to the section of the federal FOIA cited in Robbins. See 5 ILCS 140/7(1)(d)(i)\n (West 2022).\n\n -4-\n\f¶ 16 Here, the CCSAO claimed the entirety of Taylor’s requests were exempt under section\n 7(1)(d)(i). Yet, as stated above, section 7(1)(d)(i) does not allow for generic exemptions over\n an entire file. The CCSAO did not produce any documents to the circuit court for in camera\n inspection and chose to rely on Ms. Booker’s affidavit to meet its burden. Ms. Booker’s\n affidavit does not detail which records in Taylor’s case file were exempt from disclosure.\n Furthermore, the affidavit does not establish why the records were exempt, beyond noting they\n were under review due to a pending postconviction proceeding. While affidavits are accorded\n a presumption of good faith, they are insufficient if the public body presents claims that are\n conclusory. Ballew, 2022 IL App (1st) 210715, ¶ 19.\n¶ 17 We find this court’s ruling in Makiel v. Foxx, 2023 IL App (1st) 221815-U 2 persuasive. In\n Makiel, an incarcerated plaintiff filed a motion for leave to file a postconviction petition before\n submitting a FOIA request to CCSAO seeking various records related to the codefendant in\n his criminal case. Id. ¶¶ 5-6. CCSAO denied the request, claiming the records were exempt\n from disclosure pursuant to section 7(1)(d)(i), as disclosure would interfere with the plaintiff’s\n active postconviction proceeding. Id. ¶ 6. The plaintiff filed suit, and CCSAO filed a motion\n for summary judgment. Id. ¶¶ 7-8. CCSAO did not attach any affidavits to its motion, nor did\n it present any documents to the circuit court for in camera inspection. Id. ¶¶ 8, 25. The circuit\n court granted the motion for summary judgment. Id. ¶ 8. On appeal, another panel of this court\n found that CCSAO neither provided sufficiently detailed affidavits, nor produced the\n documents for in camera inspection. Id. ¶ 25. Instead, CCSAO asserted the entire file would\n interfere with the postconviction proceedings. Id. Following the approach in Kelly, the court\n found section 7(1)(d)(i) did not permit blanket exemptions and CCSAO did not meet its burden\n that the records were exempt. Id. ¶ 29.\n¶ 18 Compare the facts in Makiel to those in Ballew. In Ballew, the plaintiff submitted a FOIA\n request to the Chicago Police Department (CPD) regarding a homicide. Ballew, 2021 IL App\n (1st) 210715, ¶ 3. CPD partially responded to the request and disclosed redacted records,\n claiming the remaining records were exempt from disclosure under section 7(1)(d)(i), as the\n homicide was an ongoing investigation. Id. CPD attached an affidavit of the officer overseeing\n the investigation to its cross motion for summary judgment. Id. ¶ 9. The affidavit explained\n that the investigation was ongoing and the suspect was still at large and possibly connected to\n another unsolved homicide. Id. ¶ 21. Thus, releasing any requested documents before the\n investigation was complete would materially impact the investigation, as CPD was still trying\n to identify witnesses. Id. This court found the affidavit provided clear and convincing evidence\n that the withheld records were exempt under section 7(1)(d)(i), as the affidavit explained the\n nature of the open investigation and how disclosure would interfere. Id. ¶¶ 22-23. The court\n further found that because CPD provided the original case incident report and explained which\n records were exempt, CPD did not attempt to assert a blanket exemption. Id. ¶ 24. The record\n did not indicate that CPD refused to review all responsive records before asserting its\n exemption. Id.\n¶ 19 Here, the CCSAO’s actions are akin to Makiel rather than Ballew. While the CCSAO\n provided an affidavit in its cross motion for summary judgment, it did not explain why the\n records Taylor requested were exempt. Instead, the affidavit merely concludes that all the\n\n 2\n Nonprecedential orders entered under Illinois Supreme Court Rule 23(b) on or after January 1,\n 2021, may be cited for persuasive purposes. Ill. S. Ct. R 23(e)(1) (eff. Feb. 1, 2023).\n\n -5-\n\f records were covered by section 7(1)(d)(i) because Taylor had a pending postconviction\n proceeding. This response indicates CCSAO refused to review all responsive records before\n asserting an exemption and amounts to the generic approach rejected by both Ballew and Kelly.\n¶ 20 While a public body may meet its burden to show an exemption exists via affidavit, our\n supreme court reminds us that affidavits will not suffice to excuse the need for in camera\n inspection if the claims are conclusory, merely recite statutory standards, or are too vague or\n sweeping. Illinois Education Ass’n, 204 Ill. 2d at 471. We find the CCSAO failed to meet its\n burden to show the documents Taylor requested were exempt under FOIA section 7(1)(d)(i).\n Based on this finding, we do not address Taylor’s alternative argument that the CCSAO cannot\n prove at the time of denial that his requests would have interfered with the postconviction\n matter.\n¶ 21 Taylor next argues the circuit court erred when it found his postconviction proceeding was\n a law enforcement proceeding as contemplated by section 7(1)(d)(i). He claims the court\n incorrectly treated his postconviction petition as a law enforcement proceeding, even though a\n postconviction petition is civil in nature. Taylor points to Griffith Laboratories U.S.A. v.\n Metropolitan Sanitary District of Chicago, 168 Ill. App. 3d 341, 347-48 (1988), where this\n court found under a prior version of Illinois’s FOIA that enforcement proceedings referred to\n activities “directed toward an active and concrete effort to enforce the law.” Taylor asserts that\n the legislature’s subsequent amendments to FOIA makes Griffith Laboratories irrelevant, as\n the legislature eliminated enforcement proceedings generally. He also argues CCSAO does not\n “conduct” the postconviction proceeding as contemplated by section 7(1)(d)(i). Taylor’s\n argument raises a question of statutory interpretation, which is a question of law we review\n de novo. In re Appointment of Special Prosecutor, 2019 IL 122949, ¶ 22.\n¶ 22 Taylor’s arguments are defeated by the legislative amendment and this court’s analysis in\n Makiel. First, where the legislature amends a statute soon after a controversy arose as to the\n interpretation of the original act, it is logical to regard the amendment as a legislative\n interpretation of the original statute. Mattis v. State Universities Retirement System, 212 Ill. 2d\n 58, 83 (2004). In Griffith Laboratories, the court examined the federal FOIA for guidance on\n interpreting what was an “enforcement proceeding” under Illinois’s then-FOIA section 7(c)(i)\n (Ill. Rev. Stat. 1985, ch. 116, ¶ 207(c)(i)). The court discussed Moorefield v. United States\n Secret Service¸ 611 F.2d 1021 (5th Cir. 1980), where the United States Court of Appeals for\n the Fifth Circuit reviewed the congressional record to define the term “enforcement\n proceeding” within the context of the federal FOIA. The Moorefield court found that\n “ ‘enforcement proceedings’ correspond with ‘law enforcement purposes,’ ” which include the\n “prevention as well as the detection and punishment of violations of the law.” Id. at 1025. The\n court in Griffith Labs adopted the Moorefield court’s analysis in interpreting section 7(c)() of\n Illinois’s FOIA, stating that enforcement proceedings are activities directed toward an active\n and concrete effort to enforce the law. Griffith Laboratories, 168 Ill. App. 3d at 347.\n¶ 23 The Griffith Laboratories court issued its ruling on March 24, 1988. Id. at 341. Less than\n six months later, on September 1, 1988, the Governor approved Public Bill 85-1357, where the\n Illinois General Assembly further clarified section 7(c)(i) of Illinois’s FOIA, adding the word\n “law” in front of the phrase “enforcement proceedings.” Pub. Act 85-1357 (eff. Jan. 1, 1989)\n (amending Ill. Rev. Stat. 1987, ch. 116, ¶ 207, now codified as 5 ILCS 140/7)). Hence, we find\n that the legislature intended for the term enforcement proceedings to align with our decision\n in Griffith Laboratories.\n\n -6-\n\f¶ 24 The Post-Conviction Hearing Act allows prisoners to assert that they suffered a substantial\n denial of their constitutional rights in the proceedings that resulted in their conviction. 725\n ILCS 5/122-1(a) (West 2022). The Unified Code of Corrections defines a conviction as a\n sentence entered upon a verdict of guilty of an offense. 730 ILCS 5/5-1-5 (West 2022). Here,\n Taylor’s petition challenges his murder conviction by a jury. If the legislature intended to limit\n “law enforcement proceedings” in section 7(1)(d)(i) only to judicial hearings of a criminal\n nature, it would have done so. They did not, and we will not depart from the plain language of\n the statute to read any exceptions or limitations not consistent with the express legislative\n intent. People v. Jones, 2024 IL App (3d) 210414, ¶ 15.\n¶ 25 Second, Taylor’s assertion that the state’s attorney does not conduct postconviction\n proceedings—as it typically defends them—is a roundabout argument that this court rejected\n in Makiel. In Makiel, the plaintiff argued his motion for leave to file a successive\n postconviction petition was not a law enforcement proceeding because he initiated the\n proceedings, and not the state’s attorney. Makiel, 2023 IL App (1st) 221815-U, ¶ 20. As we\n found then, this argument would result in the State never being able to assert the exemption in\n section 7(1)(d)(i) when a convicted individual files a postconviction petition or other collateral\n attack. Id. We are not so bound to plain language statutory interpretations that we must rigidly\n follow a provision’s language to such an absurd result. People v. Pearson, 2020 IL App (2d)\n 180182, ¶ 14.\n¶ 26 Illinois courts have not previously addressed whether postconviction proceedings are law\n enforcement proceedings within the context of section 7(1)(d)(i). However, the General\n Assembly patterned the Illinois FOIA after the federal FOIA, and thus Illinois courts often\n look to federal caselaw construing the federal FOIA for guidance in construing the Illinois\n FOIA. Chicago Sun-Times v. Chicago Transit Authority, 2021 IL App (1st) 192028, ¶ 37\n (citing Special Prosecutor, 2019 IL 122949, ¶¶ 54-55). Federal courts have found that\n postconviction motions qualify as law enforcement proceedings within the context of the\n federal FOIA. See King v. United States Department of Justice, No. 09-1555, 2009 WL\n 2951124, *6 (D.D.C. Sept. 9, 2009) (“[appellant]’s post-conviction motion is still pending and\n is therefore prospective, as is required for [an] application of [federal FOIA Exemption\n 7(A)]”); see also Johnson v. Federal Bureau of Investigation, 118 F. Supp. 3d 784, 792-93\n (E.D. Pa. 2015) (“[W]here there is a pending [postconviction] motion and the movant is\n seeking a new trial, the new trial constitutes a prospective enforcement proceeding that may\n implicate Exemption 7(A)”).\n¶ 27 In Watford v. Rowe, 2021 IL App (5th) 190434-U, during postconviction proceedings, the\n plaintiff filed a motion for discovery that the court denied because plaintiff had not shown\n “good cause” for discovery. Plaintiff then filed a FOIA request. Based on the Illinois Supreme\n Court’s ruling in In re Special Prosecutor, the Watford court held it need not decide whether\n section 7(1)(d)(i) applied because it found that FOIA may not be used to obtain documents that\n a postconviction court has already denied the postconviction petitioner during discovery. The\n Watford court also reasoned that an order denying discovery in a postconviction case may not\n be circumvented in a collateral FOIA proceeding and found that one would have to appeal the\n postconviction court’s ruling that denied the discovery. Id. ¶ 23.\n¶ 28 We find that there is a distinction between Special Prosecutor and Watford. An order\n denying discovery for lack of good cause under the Post-Conviction Hearing Act, as was the\n case in Watford and here, is not the same as an order prohibiting the disclosure of documents,\n\n -7-\n\f as was the case in Special Prosecutor. The FOIA request in Special Prosecutor was clearly a\n collateral attack on the injunction, whereas, here, the FOIA petitioner has not lodged a\n collateral attack on any injunction prohibiting the disclosure of the subject records. We note\n that FOIA has long been recognized as an alternative means to obtain documents from public\n bodies.\n¶ 29 Federal courts note, however, for purposes of exemption 7(A), the fact that a defendant in\n an ongoing criminal proceeding may obtain documents via FOIA that he could not procure\n through discovery does not in and of itself constitute interference. North v. Walsh, 881 F.2d\n 1088, 1097 (D.C. Cir. 1989). Rather, the government must show that disclosure of those\n documents would—in some discernable way—disrupt, impede, or otherwise harm the\n enforcement proceeding. Id.\n¶ 30 While we find that a postconviction petition falls within the scope of section 7(1)(d)(i),\n CCSAO still bears the burden of proving the withheld documents were exempt from\n disclosure. Ballew, 2022 IL App (1st) 210715, ¶ 17. That did not happen here; therefore,\n summary judgment was improper. We hold that the pendency of a postconviction petition, in\n and of itself, is not sufficient to trigger the law enforcement exemption.\n¶ 31 We note that during oral arguments, CCSAO acknowledged that if a third party had\n submitted a FOIA request for case file records rather than Taylor, then “it would not be denied;\n the State’s Attorney would produce the file.” CCSAO also acknowledged that if Taylor had\n sought the records under FOIA before he filed his postconviction petition, then his request\n would be granted so long as there was no postconviction petition pending, or at least the section\n 7(1)(d) exemption would not be asserted. CCSAO’s interpretation would lead to the absurd\n result that a defendant who subsequently files a postconviction petition may not use FOIA to\n obtain his case file, but a third party could. Even if documents are limited in a postconviction\n proceeding, a FOIA request is not precluded unless the state explains why disclosure of each\n document or category of documents would interfere with pending or reasonably contemplated\n law enforcement proceedings. We remind CCSAO that all records in the custody or possession\n of a public body are presumed to be open to inspection or copying. 5 ILCS 140/1.2 (West\n 2022). Any public body asserting an exemption must prove by clear and convincing evidence\n that the withheld records are exempt. Id. Section 7(1) states that when a request is made to\n inspect or copy a public record that contains information exempt from disclosure, but also\n contains information not exempt, the public body may elect to redact the exempt information.\n Id. § 7(1).\n\n¶ 32 IV. CONCLUSION\n¶ 33 The circuit court erred in granting summary judgment where the CCSAO’s affidavits in\n support of their motion merely recited the statutory standard, instead of explaining why\n Taylor’s requested records were exempt. We reverse the circuit court judgment granting the\n CCSAO’s motion for summary judgment. We remand the matter, ordering the CCSAO to\n comply with its burden under FOIA to produce the requested documents or justify application\n of section 7(1)(d)(i) by preparing an index and detailed affidavit explaining why disclosure\n would interfere with or in some way harm pending or prospective law enforcement\n proceedings.\n\n¶ 34 Reversed and remanded with directions.\n\n -8-\n\f"} {"dedup_key":"2025 IL App (1st) 240629","dedup_key_type":"neutral_citation","neutral_citation":"2025 IL App (1st) 240629","case_name":"NBC Subsidiary (WMAQ-TV) LLC v. Chicago Police Department","court_level":"Appellate","appellate_district":"1st","year":2025,"county":"Cook","appellate_docket":"1-24-0629","circuit_docket":"22-CH-1297","published":1,"authoring_justice":"Fitzgerald Smith","statute":["FOIA"],"exemptions_cited":["7(1)(c)"],"public_body":"Chicago Police Department and Office of Emergency Management and Communications","requesting_party":"NBC Subsidiary (WMAQ-TV) LLC","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the denial of a FOIA request for body camera footage, holding that the recordings were exempt from disclosure because the subjects had a reasonable expectation of privacy. The court determined that the recordings were protected under the Law Enforcement Officer-Worn Body Camera Act, which is incorporated into FOIA's privacy exemptions.","best_text_source":"Court Opinions - FOIA/NBC Subsidiary v. CPD 2025 IL App (1st) 240629.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:58.714191","site_category":"Police & Investigative Records","date_decided":"2025-06-26","site_url":"/cases/2025%20IL%20App%20(1st)%20240629/","text_url":"/case-text/2025%20IL%20App%20(1st)%20240629.txt","full_text":" Digitally signed by\n Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2025.10.09\n 12:12:37 -05'00'\n\n\n\n NBC Subsidiary (WMAQ-TV) LLC v. Chicago Police Department,\n 2025 IL App (1st) 240629\n\n\n\nAppellate Court NBC SUBSIDIARY (WMAQ-TV) LLC, Plaintiff-Appellant, v. THE\nCaption CHICAGO POLICE DEPARTMENT and THE OFFICE OF\n EMERGENCY MANAGEMENT AND COMMUNICATIONS,\n Defendants-Appellees.\n\n\n\nDistrict & No. First District First Division\n No. 1-24-0629\n\n\n\nRehearing denied June 26, 2025\nFiled July 7, 2025\n\n\n\nDecision Under Appeal from the Circuit Court of Cook County, No. 22-CH-1297; the\nReview Hon. Joel Chupack, Judge, presiding.\n\n\n\nJudgment Affirmed.\n\n\nCounsel on Matthew Topic, Josh Loevy, and Shelley Geiszler, of Loevy & Loevy,\nAppeal of Chicago, for appellant.\n\n Mary B. Richardson-Lowry, Corporation Counsel, of Chicago\n (Myriam Zreczny Kasper, Suzanne M. Loose, and Elizabeth Mary\n Tisher, Assistant Corporation Counsel, of counsel), for appellees.\n\f Panel PRESIDING JUSTICE FITZGERALD SMITH delivered the\n judgment of the court, with opinion.\n Justices Lavin and Cobbs concurred in the judgment and opinion.\n\n\n OPINION\n\n¶1 The plaintiff, NBC Subsidiary (WMAQ-TV) LLC, appeals from the trial court’s entry of\n summary judgment in favor of the defendants, the Chicago Police Department (CPD) and the\n Office of Emergency Management and Communications (OEMC), on the plaintiff’s complaint\n seeking to enforce compliance with a request for records under the Freedom of Information\n Act (FOIA) (5 ILCS 140/1 et seq. (West 2022)). We affirm.\n\n¶2 BACKGROUND\n¶3 On January 6, 2022, an investigative producer working for the plaintiff submitted a FOIA\n request to CPD, seeking “any and all documentation related to the fatal hit-and-run crash that\n occurred on [August 26, 2021,] at 300 N. Central Park Ave. (RD# JE350872), including any\n surveillance video, incident reports, witness statements and any other materials related to the\n crash.” On January 7, 2022, CPD responded and denied the plaintiff’s FOIA request. In\n summary, CPD’s response stated that (1) the major accident investigation unit’s reports and\n the traffic crash report were available through non-FOIA means, (2) responsive body camera\n video footage had been identified, but it was not subject to disclosure under FOIA pursuant to\n section 10-20(b) of the Law Enforcement Officer-Worn Body Camera Act (Body Camera Act)\n (50 ILCS 706/10-20(b) (West 2022)), and (3) additional responsive records were exempt on\n the grounds that disclosure of them would interfere with pending or anticipated law\n enforcement proceedings or would obstruct an ongoing criminal investigation, pursuant to\n section 7(1)(d)(i) and (vii) of FOIA (5 ILCS 140/7(1)(d)(i), (vii) (West 2022)). The plaintiff\n thereafter obtained an unredacted copy of the traffic crash report for this collision. 1\n¶4 On January 10, 2022, the plaintiff submitted a FOIA request to OEMC requesting “any and\n all video recorded via POD [(police observation device)] cameras or surveillance cameras\n between 3:30 p.m. and 5:30 p.m. on [August 26, 2021], in the area of the fatal hit-and-run crash\n that occurred at 300 N. Central Park Ave (RD# JE350872).” On January 18, 2022, OEMC\n responded and denied the plaintiff’s FOIA request. Pertinent to this appeal, OEMC’s response\n cited section 7(1)(d)(i) of FOIA (id. § 7(1)(d)(i)) as its basis for denial. It stated that releasing\n the requested information would impede CPD’s open investigation into the incident and give\n those involved insight into the direction of that investigation and an ability to threaten\n witnesses or destroy evidence.\n¶5 On February 15, 2022, the plaintiff filed the present cause of action against the defendants\n seeking to enforce compliance with the two FOIA requests above. Once the parties were at\n issue on the pleadings, cross-motions for summary judgment were filed and briefed. As part\n of that briefing, the defendants filed an index of records that were responsive to the plaintiff’s\n request but withheld as exempt from disclosure. See id. § 11(e). According to that index, the\n\n Neither side discloses whether the plaintiff was eventually able to obtain any reports from the\n 1\n\n major accident investigation unit, but such reports are not a subject of this appeal.\n\n -2-\n\f withheld records in this case comprise (1) footage from five police officers’ body-worn\n cameras, which show the victim and witnesses and which record witnesses’ statements\n concerning the suspect, the suspect’s vehicle, and the witnesses’ personal information (i.e.,\n names, phone numbers, and birth dates); (2) records obtained from T-Mobile in response to a\n search warrant for the suspect’s cell phone records (described as call log, data sessions, and\n interpretations of call log, subscribers, and time stamp); (3) footage from three POD cameras\n in the area at the time of the collision; and (4) a PowerPoint presentation that CPD prepared\n on the progress of the investigation (as of a date not disclosed), including an analysis of the T-\n Mobile records and POD footage.\n¶6 The defendants argued in their motion for summary judgment that all of the records above\n were exempt from disclosure under section 7(1)(d)(i) of FOIA (id. § 7(1)(d)(i)), which exempts\n records in the possession of any law enforcement agency for law enforcement purposes, “but\n only to the extent that disclosure would *** interfere with pending or actually and reasonably\n contemplated law enforcement proceedings conducted by any law enforcement *** agency\n that is the recipient of the request.” In support of their assertion that disclosure of the above\n records would interfere with CPD’s then-ongoing investigation into the hit-and-run collision\n at issue, the defendants submitted the affidavit of Officer Paul Niezabitowski. As this affidavit\n is the primary basis of the parties’ arguments on appeal, we set forth its contents in detail.\n¶7 Officer Niezabitowski’s affidavit established the following facts. He is employed by CPD\n as an investigator with the major accident investigation unit, and he assisted in investigation\n of the fatal hit-and-run collision at issue. His duties in the case included collecting and\n reviewing available evidence. His opinion is that the current investigation would be\n compromised by the release of (1) videos, including from officers’ body-worn cameras and\n POD cameras; (2) records from T-Mobile responsive to a search warrant for cell phone\n records; and (3) a PowerPoint presentation analyzing the T-Mobile records and POD camera\n video footage. As of January 7, 2022, and January 18, 2022, the investigation of the incident\n was open and ongoing; no arrests had been made, and the perpetrator remained at large on both\n dates. Based on his experience, it is not uncommon for a hit-and-run investigation to take\n longer than five months to close or otherwise reach a point where release of any associated\n records would not interfere with the investigation; this is due to the various investigative steps\n which require time to complete (e.g., forensic evidence testing), and the need to comply with\n requests by the Cook County State’s Attorney’s Office.\n¶8 Officer Niezabitowski’s affidavit went on to state that in this instance, the investigation\n took time to progress because it required the major accident investigation unit to locate the\n suspect vehicle, swab it for DNA on both the steering wheel and undercarriage, send those\n swabs to the Illinois State Police for testing, receive the results of the testing back, send\n additional evidence from the suspect vehicle to the Illinois State Police to gain greater evidence\n of who was driving it at the time of the crash, and obtain court approval for the above searches\n and seizures, as well as for a grand jury to subpoena T-Mobile for cell phone records of the\n suspect’s phone. He stated that investigations are designed to remain out of the public eye until\n warrants are issued and arrests are made; this enables the investigation to occur without undue\n interference, such as changing of witness statements or suspects evading detection and capture.\n Producing records responsive to the plaintiff’s FOIA requests would have materially impacted\n the investigation, as disclosure would reveal the nature and progress of the investigation and\n descriptions of potential suspects. If offenders determine from the news media the extent of\n\n\n -3-\n\f evidence police have against them, they can then take steps to evade detection or capture,\n including fleeing the jurisdiction. It can also allow suspects time to create alibis and better\n fabricate evidence.\n¶9 Officer Niezabitowski stated that he was actively attempting to locate and speak with a\n specific witness who could identify the driver of the vehicle. In his experience, releasing\n witnesses’ likenesses, identifying information, and statements reduces civilian cooperation\n with police and hampers investigations. If witness statements are made public during an\n investigation prior to arrests being made, it places witnesses at risk of harm or retaliation,\n which makes them less likely to cooperate with investigators. Publicly releasing investigation\n details could also alter the memory or testimony of witnesses who have not yet been\n interviewed.\n¶ 10 Finally, as to the specific categories of records at issue in this case, Officer Niezabitowski’s\n affidavit stated as follows:\n “19. In the current case, the disclosure of the officer worn body camera video would\n have interfered with the investigation. The videos included witness identities and\n interviews. As part of those interviews, witnesses gave descriptions of the suspect and\n the suspect vehicle. Release of these videos would put these witnesses at risk of harm\n or retaliation, particularly considering the criminal history of the primary suspect and\n could jeopardize the investigation.\n 20. In my experience, if the body worn camera videos were released and published\n in the current case, these witnesses and others would see the interviews. Their\n memories could be altered, and the value of any subsequent interviews could be\n undermined.\n 21. The POD camera videos show the suspect vehicle driving in the vicinity of the\n crash at the time of the crash. If these videos were released, the suspect would see their\n vehicle appears in all the videos, would know that they are under investigation, and\n would attempt to evade capture. The release could also alter the memories of witnesses,\n as the paths and direction of travel of the suspect vehicle is not publicly known.\n 22. The release of the T-Mobile records would interfere with the investigation. The\n records were for the primary suspect’s cell phone records. Disclosing those records\n would reveal the name of the suspect, who has not yet been arrested. The suspect would\n see this disclosure, know that they are under investigation, and could attempt to evade\n capture. More importantly, and as explained above, the phone records were obtained\n as a result of Grand Jury Subpoenas and cannot publicly be disclosed absent a court\n order.\n 23. The public release of the PowerPoint analysis of the T-Mobile records and the\n POD videos would similarly undermine the investigation. The PowerPoint shows how\n the suspect’s cell phone was in the vicinity of the crash at the time of the crash. The\n POD video shows how the suspect’s vehicle was also in the vicinity at that time ***.\n Similarly, if the PowerPoint were publicly released, the suspect would know that CPD\n is aware that their vehicle and that their phone was in the area of the crash at the time\n it occurred. The suspect would then know that they are being investigated and could\n attempt to evade capture.”\n\n\n\n -4-\n\f¶ 11 The trial court entered two orders in this case that are the subject of appeal. By these orders,\n it granted the defendants’ cross-motion for summary judgment, denied the plaintiff’s motion\n for partial summary judgment, and denied the plaintiff’s motion to reconsider those summary\n judgment rulings. With greater elaboration in its order denying the motion to reconsider, the\n trial court explained that it found that the defendants had met their burden to establish that all\n withheld records were exempt from disclosure on the basis that the disclosure of them would\n interfere with an ongoing police investigation concerning the hit-and-run collision at issue.\n Also, specifically concerning the video footage from officers’ body-worn cameras, the trial\n court ruled that this was exempt from disclosure through FOIA under section 10-20(b) of the\n Body Camera Act (50 ILCS 706/10-20(b) (West 2022)). The plaintiff filed a notice of appeal\n as to these rulings.\n\n¶ 12 ANALYSIS\n¶ 13 This appeal involves the trial court’s entry of summary judgment in a FOIA case. Section\n 2-1005(c) of the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West 2022)) provides that\n summary judgment shall be rendered without delay if the pleadings, depositions, and\n admissions on file, together with any affidavits, show that there is no genuine issue of material\n fact and that the moving party is entitled to judgment as a matter of law. Once the records at\n issue are properly identified, FOIA cases are generally appropriate for resolution through\n summary judgment. BlueStar Energy Services, Inc. v. Illinois Commerce Comm’n, 374 Ill.\n App. 3d 990, 997 (2007). We review de novo both questions as to the propriety of summary\n judgment and as to whether the records of a public body are exempt from disclosure under\n FOIA. Lucy Parsons Labs v. City of Chicago Mayor’s Office, 2021 IL App (1st) 192073, ¶ 11.\n¶ 14 FOIA provides that all records in the custody or possession of a public body are presumed\n to be open to inspection or copying. 5 ILCS 140/1.2 (West 2022). A public body must comply\n with a proper request for information unless the records or information is subject to one of the\n exemptions in section 7 of FOIA (id. § 7). Chapman v. Chicago Department of Finance, 2023\n IL 128300, ¶ 32. These exemptions are to be read narrowly. Id. Relevant here is the exemption\n for “[r]ecords in the possession of *** any law enforcement *** agency for law enforcement\n purposes, but only to the extent that disclosure would *** interfere with pending or actually\n and reasonably contemplated law enforcement proceedings conducted by any law enforcement\n *** agency that is the recipient of the request.” 5 ILCS 140/7(1)(d)(i) (West 2022). A public\n body that asserts that a record is exempt from disclosure has the burden of proving by clear\n and convincing evidence that it is exempt. Id. § 1.2. To meet this burden and assist the court\n in making its determinations, the public body must provide a detailed justification for its claim\n of exemption, addressing the requested documents specifically and in a manner that allows for\n adequate adversary testing. Illinois Education Ass’n v. Illinois State Board of Education, 204\n Ill. 2d 456, 464 (2003). Accordingly, affidavits submitted for this purpose that are conclusory,\n that merely recite statutory standards, or that are too vague or sweeping will not suffice to\n satisfy this burden. Id. at 469. We review the propriety of withholding records pursuant to a\n claim of exemption under circumstances as they existed on the date the public body made its\n decision (here, January 7, 2022, and January 18, 2022). Green v. Chicago Police Department,\n 2022 IL 127229, ¶ 3.\n¶ 15 In this appeal, the heart of the plaintiff’s argument is that Officer Niezabitowski’s affidavit\n was insufficient to satisfy the defendants’ burden of proving by clear and convincing evidence\n\n -5-\n\f that release of all the withheld records would interfere with pending or reasonably\n contemplated law enforcement proceedings. 2 See 5 ILCS 140/7(1)(d)(i) (West 2022). The\n plaintiff argues that his affidavit is simply a repetition of the affidavit statements that this court\n found sufficient in Ballew v. Chicago Police Department, 2022 IL App (1st) 210715, without\n any meaningful independent application to the records of this case. As such, the plaintiff\n argues, the statements in it upon which the defendants rely are generic, vague, and untethered\n to any specific records actually being withheld in this instance. The plaintiff also characterizes\n the defendants as improperly claiming a “blanket” exemption over all responsive records,\n instead of reviewing them all to determine what information within them can be disclosed, at\n least in redacted form. The plaintiff further contends that the defendants have voluntarily made\n public much of the information sought here, such as the witnesses’ full names and contact\n information included in the traffic crash report and the still photos and license plate number of\n the suspect vehicle included in a community alert issued the day after the collision. The\n plaintiff argues that the extent of information that the defendants have voluntarily disclosed\n undermines their argument that disclosing much of the same information through a FOIA\n request would interfere with an ongoing investigation.\n¶ 16 In response, the defendants argue that they met their burden of showing that all the\n responsive records were properly withheld as exempt from disclosure under section 7(1)(d)(i),\n because Officer Niezabitowski’s affidavit sets forth in detail how disclosing the responsive\n records at issue would have interfered with CPD’s ongoing investigation into this particular\n hit-and-run collision. They contend that the plaintiff is grossly misrepresenting the extent of\n case-specific detail included in Officer Niezabitowski’s affidavit, and they assert that his\n affidavit goes beyond what this court held sufficient in Ballew. They argue that this is not a\n case in which a blanket exemption was asserted over all records without any meaningful review\n of them to determine whether anything within them needed to be disclosed in redacted form,\n and nothing supports the argument that the defendants undertook an inadequate review of\n records here. Finally, they argue that the information made public in the traffic crash report or\n the community alert was far less detailed than the records requested by the plaintiff here, which\n include extensive video footage and details about the crash and ensuing police investigation.\n We agree with the defendants’ arguments.\n¶ 17 In Ballew, the CPD partially denied a FOIA request by a reporter seeking records pertaining\n to a homicide that had occurred six months earlier. Id. ¶¶ 3-4. This court held that CPD had\n satisfied its burden of explaining how disclosure of the withheld documents would interfere\n with its pending investigation into the homicide by its submission of the affidavit of the\n investigator in charge of it, Lieutenant John Roberts. Id. ¶¶ 20-23, 27. The court summarized\n the contents of Roberts’s affidavit as follows:\n “In his affidavit, Roberts explained that the homicide investigation was ongoing\n and that the offender remained at large. Moreover, he stated that the outcome of the\n investigation may be jeopardized if details of the investigation, investigative technique,\n and evidence were to be released. The homicide underlying the FOIA request in the\n\n\n The plaintiff also discusses section 7(1)(d)(vii) of FOIA (5 ILCS 140/7(1)(d)(vii) (West 2022)),\n 2\n\n which exempts from disclosure law enforcement records to the extent it would “obstruct an ongoing\n criminal investigation.” However, as the defendants make no argument that the records at issue are\n exempt under section 7(1)(d)(vii), we do not address this separate exemption.\n\n -6-\n\f case at bar appears to be linked to another unsolved homicide, and both appear to be\n hate-driven with similar modi operandi. Thus, according to Roberts, ‘releasing any of\n the requested materials before the investigation was complete would materially impact\n the investigation, especially considering that the investigators were still trying to\n identify witnesses, and premature release would make the investigators’ determination\n of the veracity of any subsequent witnesses much more difficult.’ Finally, he explained\n that, in cases that have received significant media interest, ‘it is critical that the\n investigators be able to determine whether a purported witnesses [sic] actually has\n something to further aid the investigation, and is not simply using [publicly] available\n information in a misguided attempt to aid or otherwise mislead the investigators,\n wasting finite investigative resources.’ ” Id. ¶ 21.\n¶ 18 A simple comparison of the statements in Officer Niezabitowski’s affidavit above (supra\n ¶¶ 7-10) to the summary of Lieutenant Roberts’s affidavit in Ballew leads us to reject the\n plaintiff’s argument that Officer Niezabitowski’s affidavit is a generic or vague duplication of\n the points in Roberts’s affidavit with no application to the records or facts of this case. Instead,\n we agree with the defendants that his affidavit contains sufficient case-specific detail about\n why the disclosure of the records at issue would interfere with an ongoing police investigation.\n¶ 19 Officer Niezabitowski’s affidavit explained that, as of the operative dates of the FOIA\n request five months after the collision at issue, CPD was continuing to investigate to identify\n the driver of the suspect vehicle. This specifically included attempting to locate and speak to a\n particular witness who could identify the driver. He explained that disclosing the body camera\n footage, which included witnesses’ identities and interviews wherein they described the\n suspect and the suspect vehicle, would place those witnesses at risk of harm or retaliation\n (particularly in light of the primary suspect’s criminal history) and could jeopardize the\n investigation. Publication of these videos could also alter the memories of other witnesses,\n thereby undermining the value of any subsequent interviews. He explained that releasing the\n POD camera footage, which showed the suspect vehicle driving in the vicinity, would alert the\n suspect to the fact that they were under investigation and allow the suspect to evade capture. It\n could likewise alter the memory of witnesses, as paths and direction of travel are not publicly\n known. He explained that release of the T-Mobile records, which were for the primary\n suspect’s cell phone records, would reveal the name of the suspect, again alerting that person\n that they were under investigation and allowing them to evade capture. Finally, he explained\n that release of the PowerPoint document, which analyzed the T-Mobile records and POD\n camera footage to show how the suspect’s cell phone and vehicle were in the vicinity at the\n time of the collision, would alert the suspect to the evidence against them and allow them to\n evade capture. He added that disclosure of the records during an ongoing investigation may\n also allow the suspect time to create an alibi or better fabricate evidence. We find the\n statements in Officer Niezabitowski’s affidavit to be sufficient to show by clear and convincing\n evidence that these records are exempt from disclosure under section 7(1)(d)(i).\n¶ 20 Further, we find no support for the plaintiff’s argument that the defendants improperly\n claimed a “blanket” exemption over all responsive records without reviewing them all to\n determine whether any information within them could be disclosed, at least in redacted form.\n This court rejected a nearly identical argument in Ballew. There, the court found that CPD had\n produced an incident report and shown through the affidavit of Lieutenant Roberts why the\n other requested documents were exempt from disclosure, and there was “nothing to indicate\n\n\n -7-\n\f that CPD has refused to review all responsive records before asserting this exemption.” Ballew,\n 2022 IL App (1st) 210715, ¶ 24. The court in Ballew further stated that the explanation in\n Lieutenant Roberts’s affidavit distinguished that case from Kelly v. Village of Kenilworth, 2019\n IL App (1st) 170780, where this court had held that an improper blanket exemption was\n claimed. Ballew, 2022 IL App (1st) 210715, ¶ 25. The holding in Kelly was based upon the\n FOIA request recipients’ claiming that all documents were exempt concerning a 50-year-old\n unsolved homicide, where the recipients had responded with only generic explanations as to\n why disclosure would interfere with an ongoing investigation and had essentially admitted to\n not reviewing the 20,000 pages of withheld documents to determine whether anything in them\n could be disclosed. Kelly, 2019 IL App (1st) 170780, ¶¶ 36, 39, 47.\n¶ 21 In this case, we are dealing with a fairly small number of records that were withheld,\n comprising about eight video recordings, the cell phone records of one person, and a\n PowerPoint presentation. As was the case in Ballew, we find no basis in the record for\n concluding that the defendants did not review these records before claiming a “blanket”\n exemption from disclosure under section 7(1)(d)(i). Instead, as explained above, we find that\n Officer Niezabitowski’s affidavit supports the conclusion that the entirety of the body camera\n and POD camera footage, the T-Mobile records, and the PowerPoint analysis pertaining to this\n hit-and-run collision were reviewed and found to come within this exemption for the reasons\n he articulated.\n¶ 22 As for the plaintiff’s argument that it is nevertheless entitled to obtain redacted versions of\n these records in some form, neither party addresses this argument in great detail. The plaintiff\n relies upon the provision of section 7(1) of FOIA (5 ILCS 140/7(1) (West 2022)) that states:\n “When a request is made to inspect or copy a public record that contains information\n that is exempt from disclosure under this Section, but also contains information that is\n not exempt from disclosure, the public body may elect to redact the information that is\n exempt. The public body shall make the remaining information available for inspection\n and copying.”\n The plaintiff also cites Lucy Parsons Labs, 2021 IL App (1st) 192073, ¶ 19, for the proposition\n that a public body’s duty to redact the exempt information and produce the nonexempt\n information remains even where the redactions would leave the requestor with nothing useful.\n¶ 23 We find that the plaintiff is not entitled to redacted versions of the law enforcement records\n at issue that are exempt on the basis that disclosure of them would interfere with pending or\n contemplated law enforcement proceedings. Section 7(1)(d)(i) of FOIA (5 ILCS 140/7(1)(d)(i)\n (West 2022)) exempts “[r]ecords” in the possession of a law enforcement agency. It is thus a\n broader exemption than many other exemptions that apply only to “information” within\n records. See, e.g., id. § 7(1)(c) (exempting “[p]ersonal information contained within public\n records”); id. § 7(1)(j) (exempting certain “information pertaining to educational matters”).\n And section 7(1) states that redaction applies when a request involves “a public record that\n contains information that is exempt from disclosure under this Section, but also contains\n information that is not exempt from disclosure.” (Emphases added.) Id. § 7(1).\n¶ 24 When the court in Lucy Parsons Labs stated that a public body had a duty to redact exempt\n information and produce the nonexempt information “even where the redactions would leave\n the requestor with nothing useful,” it did so in the specific context of recognizing that the FOIA\n request at issue likely involved “a mix of both exempt and nonexempt information.” Lucy\n Parsons Labs, 2021 IL App (1st) 192073, ¶ 19. The request in that case was for the City of\n\n -8-\n\f Chicago’s 150-page action plan for managing potential unrest on the day of the verdict in a\n high-profile murder trial involving a former police officer. Id. ¶ 3. In withholding the entire\n action plan, the defendant had relied upon the exemption for\n “ ‘[v]ulnerability assessments, security measures, and response policies or plans that\n are designed to identify, prevent, or respond to potential attacks upon a community’s\n population or systems, facilities, or installations, the destruction or contamination of\n which would constitute a clear and present danger to the health or safety of the\n community, but only to the extent that disclosure could reasonably be expected to\n jeopardize the effectiveness of the measures or the safety of the personnel who\n implement them or the public. Information exempt under this item may include such\n things as details pertaining to the mobilization or deployment of personnel or\n equipment, to the operation of communication systems or protocols, or to tactical\n operations.’ ” Id. ¶ 13 (quoting 5 ILCS 140/7(1)(v) (West 2018)).\n The court reasoned that while the defendant had met its burden of establishing that some\n information within the requested action plan qualified for this exemption, the presence of this\n information within it did not necessarily make the plan exempt in its entirety. Id. ¶¶ 14-15. The\n court held that, having determined that the plan “is likely a mix of both exempt and nonexempt\n information,” remand was necessary so that the defendant could redact from the plan any\n information within it that qualified for exemption and produce that which remained. Id. ¶¶ 19,\n 21.\n¶ 25 In this case, unlike in Lucy Parsons Labs, we are dealing with an exemption for “[r]ecords,”\n not one for particular information within records. See 5 ILCS 140/7(1)(d)(i) (West 2022). And\n again, this case involves a fairly small number of records—body camera and POD camera\n footage, the primary suspect’s cell phone records subpoenaed from T-Mobile, and a\n PowerPoint presentation analyzing this other evidence. Nothing about the nature of these\n records causes us to suspect that any of these is a “record that contains information that is\n exempt from disclosure under this Section, but also contains information that is not exempt\n from disclosure.” Id. § 7(1). Rather, given their nature and the law-enforcement reasons for\n which they are exempt from disclosure, we conclude that the defendants have sufficiently\n shown through Officer Niezabitowski’s affidavit that these records are exempt from disclosure\n in their entirety pursuant to section 7(1)(d)(i). The defendants had no duty in this instance to\n provide redacted versions of them to the plaintiff.\n¶ 26 Finally, we find no merit to the plaintiff’s argument that the defendants’ voluntary\n disclosure of the witnesses’ names and contact information in the traffic crash report and of\n photos and the license plate number of the suspect vehicle in a community alert undermines\n their position that disclosing information through a FOIA request would interfere with an\n ongoing police investigation. It is evident from Officer Niezabitowski’s affidavit that the body\n camera and POD camera footage, the T-Mobile records, and the PowerPoint analysis of the\n evidence contains far more detailed information about the nature and extent of CPD’s\n investigation into the collision than anything made public in the traffic crash report or the\n community alert issued in the days following the incident. If this detailed information were\n disseminated through the news media—particularly the recorded footage of the witnesses’\n statements and the suspect vehicle’s path of travel—there is far greater risk of attracting the\n attention that would result in the harm discussed in Officer Niezabitowski’s affidavit. Thus,\n the fact that CPD made public some limited information does not eliminate the risk of\n\n -9-\n\f interference to the pending investigation if law enforcement records containing far greater\n information about it were disclosed.\n¶ 27 Given our conclusion that all withheld records in this case are exempt from disclosure\n under section 7(1)(d)(i) of FOIA (id. § 7(1)(d)(i)), it is not necessary for us to separately\n consider whether the body camera footage is also exempt from disclosure under section 10-\n 20(b) of the Body Camera Act (50 ILCS 706/10-20(b) (West 2022)). However, we choose to\n address the plaintiff’s legal argument that this statute does not exempt disclosure through FOIA\n of footage recorded on a public street where the victim and witnesses lacked a “reasonable\n expectation of privacy.”\n¶ 28 Section 10-20(b) of the Body Camera Act (id.) provides as follows:\n “(b) Recordings made with the use of an officer-worn body camera are not subject\n to disclosure under the Freedom of Information Act, except that:\n (1) if the subject of the encounter has a reasonable expectation of privacy, at\n the time of the recording, any recording which is flagged, due to the filing of a\n complaint, discharge of a firearm, use of force, arrest or detention, or resulting death\n or bodily harm, shall be disclosed in accordance with the Freedom of Information\n Act if:\n (A) the subject of the encounter captured on the recording is a victim or\n witness; and\n (B) the law enforcement agency obtains written permission of the subject\n or the subject’s legal representative;\n (2) except as provided in paragraph (1) of this subsection (b), any recording\n which is flagged due to the filing of a complaint, discharge of a firearm, use of\n force, arrest or detention, or resulting death or bodily harm shall be disclosed in\n accordance with the Freedom of Information Act; and\n (3) upon request, the law enforcement agency shall disclose, in accordance with\n the Freedom of Information Act, the recording to the subject of the encounter\n captured on the recording or to the subject’s attorney, or the officer or his or her\n legal representative.\n For the purposes of paragraph (1) of this subsection (b), the subject of the encounter\n does not have a reasonable expectation of privacy if the subject was arrested as a result\n of the encounter. For purposes of subparagraph (A) of paragraph (1) of this subsection\n (b), ‘witness’ does not include a person who is a victim or who was arrested as a result\n of the encounter.\n Only recordings or portions of recordings responsive to the request shall be\n available for inspection or reproduction. Any recording disclosed under the Freedom\n of Information Act shall be redacted to remove identification of any person that appears\n on the recording and is not the officer, a subject of the encounter, or directly involved\n in the encounter. Nothing in this subsection (b) shall require the disclosure of any\n recording or portion of any recording which would be exempt from disclosure under\n the Freedom of Information Act.” (Emphasis added.) 3\n\n\n Related to this statute, we also note that section 7(1)(a) of FOIA (5 ILCS 140/7(1)(a) (West 2022))\n 3\n\n exempts from disclosure “[i]nformation specifically prohibited from disclosure by federal or State law\n\n - 10 -\n\f¶ 29 The parties’ dispute centers around the meaning of “reasonable expectation of privacy” in\n the above statute. Both sides agree that the body camera footage at issue was “flagged” due to\n death resulting to a person in the recording. See id. § 10-20(a)(7)(B)(iii). They also agree that\n the subjects of the encounter captured on the recording are witnesses and the victim and that\n no written permission from the subjects or their legal representatives has been obtained by any\n party.\n¶ 30 Instead, the plaintiff’s position is that the body camera footage is disclosable under section\n 10-20(b)(2) above. Section 10-20(b)(1) is inapplicable, according to the plaintiff, because the\n victim and the witnesses who were the subjects of the recorded encounter had no “reasonable\n expectation of privacy” in events or conversations with police that were recorded on a public\n street, where this hit-and-run collision took place. The plaintiff contends that “reasonable\n expectation of privacy” is ambiguous as it is used in this statute. Based upon this purported\n ambiguity, the plaintiff urges us to look to the legislative history and to conclude that this\n phrase has the same meaning as in the test set forth in Justice Harlan’s concurrence in Katz v.\n United States, 389 U.S. 347 (1967). Under that test, a reasonable expectation of privacy, the\n infringement of which violates the fourth amendment, requires (1) that a person has exhibited\n an actual (subjective) expectation of privacy and (2) that the expectation be one that society is\n prepared to recognize as reasonable. Id. at 361 (Harlan, J., concurring); see California v.\n Ciraolo, 476 U.S. 207, 211 (1986) (test adopted by majority); People v. Smith, 152 Ill. 2d 229,\n 244-45 (1992). From this premise, the plaintiff argues that there is no basis for concluding that\n the witnesses whose interviews with police were recorded by body cameras expected that their\n conversations on a public street would be kept private, thus obviating the requirement of\n section 10-20(b)(1)(B) that their written permission be obtained as a condition of disclosing\n the body camera footage pursuant to a FOIA request.\n¶ 31 This argument as to ambiguity requires us to apply principles of statutory interpretation. A\n court’s primary objective in interpreting statutes is to ascertain and give effect to legislative\n intent. Accettura v. Vacationland, Inc., 2019 IL 124285, ¶ 11. To do this, we look first to the\n plain and ordinary meaning of the language used in the statute, read in light of the subject it\n addresses and the legislature’s apparent intent in enacting it. People v. Lane, 2023 IL 128269,\n ¶ 11. Words and phrases are considered in light of the statute as a whole instead of being\n viewed in isolation. Relf v. Shatayeva, 2013 IL 114925, ¶ 23. When the language of a statute\n is clear and unambiguous, we must apply it as written, without resorting to legislative histories\n or other extrinsic sources to determine legislative intent. Policemen’s Benevolent Labor\n Committee v. City of Sparta, 2020 IL 125508, ¶ 15. Only if statutory language is ambiguous\n may we consider extrinsic aids of construction. Id. A statute is ambiguous when it is subject to\n more than one reasonable interpretation, but statutory language is not ambiguous merely\n because the parties disagree about its meaning. Lenz v. Advocate Health & Hospitals Corp.,\n 2023 IL App (1st) 230740, ¶ 13.\n¶ 32 Applying these principles of statutory interpretation, we reject the plaintiff’s argument that\n the phrase “reasonable expectation of privacy” is ambiguous as used in section 10-20(b) of the\n Body Camera Act (50 ILCS 706/10-20(b) (West 2022)). Thus, we find no need to resort to\n\n\n or rules and regulations implementing federal or State law.” And section 7.5(cc) of FOIA (id. § 7.5(cc))\n exempts from disclosure “[r]ecordings made under the Law Enforcement Officer-Worn Body Camera\n Act, except to the extent authorized under that Act.”\n\n - 11 -\n\f legislative history to discern the legislative intent. Instead, we conclude from the plain\n language, read in context of the whole statute and considered in light of the statute’s purpose,\n that the legislature intended this phrase to have a broader meaning than it does under fourth\n amendment law. Section 10-20(b) is specifically addressing disclosure of body camera\n recordings under FOIA. The statute’s concern is with the reasonable privacy expectations of a\n victim or a witness who becomes “the subject of [an] encounter” with police that is recorded\n by body camera. Id. § 10-20(b)(1). If the phrase “reasonable expectation of privacy” in this\n context is interpreted as having the same contours as the test from Katz for a fourth amendment\n violation, it is difficult for us to conceive how any person who voluntarily engages in a\n conversation with a law enforcement officer about a crime of which he or she has been a victim\n or witness could ever be said to have a reasonable expectation of privacy in that conversation,\n regardless of where it occurs. See United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“no\n intrusion upon [a] person’s liberty or privacy” occurs for fourth amendment purposes when a\n person voluntarily answers questions posed by police).\n¶ 33 Instead, we believe that the legislature intended the phrase “reasonable expectation of\n privacy” in this statute to account for the fact that a victim or witness could engage in an\n encounter with a law enforcement officer while recognizing that the body camera recording of\n that encounter would likely be used for law enforcement purposes; by doing so, however, that\n victim or witness does not necessarily forfeit the reasonable expectation, stemming from the\n right to privacy (see People v. Austin, 2019 IL 123910, ¶¶ 62-63), that the law enforcement\n agency will not disseminate that recording to the news media or the public at large. The\n consideration is how a reasonable person in that position would expect the body camera\n recording to be used and the nature and extent of the audience to which he or she would\n reasonably expect it to be disclosed. This interpretation most reasonably advances the\n legislative purpose of “protecting individual privacy” while also furthering the goals of helping\n to collect evidence, improving transparency and accountability, and strengthening public trust\n in law enforcement agencies. See 50 ILCS 706/10-5 (West 2022).\n¶ 34 Here, the body camera recordings were taken at the scene of a fatal hit-and-run collision\n that occurred on a public street. All five body camera recordings involve interviews with\n witnesses to the collision in which they described to police the suspect and the suspect’s\n vehicle. At least one of the recordings also contains video of the victim who suffered ultimately\n fatal injuries receiving treatment in an ambulance. We find that reasonable persons in the\n position of these witnesses and the victim would reasonably expect their recorded encounters\n to be used for law enforcement purposes but would also expect, as a matter of privacy rights,\n that the recordings not be disseminated to the news media or the public. We believe that\n witnesses to a fatal hit-and-run collision who give statements to police describing the\n perpetrator would reasonably expect the police department to protect them from possible acts\n of retaliation by avoiding the dissemination of their recorded statements to the media or the\n general public. Similarly, we believe that individuals who have just witnessed or been involved\n in a traumatic incident such as a fatal car collision would not reasonably expect the police to\n release video to the public showing them in a vulnerable state. And a person who is in an\n ambulance receiving treatment for injuries he or she has sustained in a collision would not\n reasonably expect the police to publicly release video footage showing this.\n¶ 35 For these reasons, we hold that the body camera recordings at issue are ones in which the\n victim and witnesses who are the subjects of the encounters had reasonable expectations of\n\n\n - 12 -\n\f privacy at the time of the recording. As such, the recordings are subject to disclosure only if\n written permission is obtained from the subjects or their legal representatives. As the record\n discloses no written permission for disclosure, the defendants properly withheld the recordings\n from disclosure under section 10-20(b)(1).\n\n¶ 36 CONCLUSION\n¶ 37 For the foregoing reasons, the judgment of the trial court is affirmed.\n\n¶ 38 Affirmed.\n\n\n\n\n - 13 -\n\f"} {"dedup_key":"2025 IL App (1st) 242292-U","dedup_key_type":"neutral_citation","neutral_citation":"2025 IL App (1st) 242292-U","case_name":"Disgrase Felyer v. The Village of Arlington Heights","court_level":"Appellate","appellate_district":"1st","year":2025,"county":"Cook","appellate_docket":"1-24-2292","circuit_docket":"2023 M 1100425, 2023 M 1101376, 2023 M 300871, 2023 M 300874, 2023 M 300875","published":0,"authoring_justice":"Rochford","statute":["FOIA"],"exemptions_cited":[],"public_body":"Village of Arlington Heights","requesting_party":"Disgrase Felyer","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court affirmed the circuit court's grant of summary judgment in favor of the Village of Arlington Heights in a FOIA dispute. The court held that the municipality complied with both Supreme Court Rule 191(a) and the FOIA statute, and the plaintiff failed to provide evidence to contradict the Village's affidavits.","best_text_source":"Court Opinions - FOIA/Delyer v. Village of Arlington Heights 2025 IL App (1st) 242292-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:58.969300","site_category":"FOIA Response Process","date_decided":"2025-08-14","site_url":"/cases/2025%20IL%20App%20(1st)%20242292-U/","text_url":"/case-text/2025%20IL%20App%20(1st)%20242292-U.txt","full_text":" 2025 IL App (1st) 242292-U\n Order filed: August 14, 2025\n\n FIRST DISTRICT\n FOURTH DIVISION\n\n No. 1-24-2292\n\nNOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the\nlimited circumstances allowed under Rule 23(e)(1).\n______________________________________________________________________________\n\n IN THE\n APPELLATE COURT OF ILLINOIS\n FIRST JUDICIAL DISTRICT\n______________________________________________________________________________\n\n DISGRASE FELYER, ) Appeal from the\n ) Circuit Court of\n Plaintiff-Appellant, ) Cook County.\n )\n v. ) 2023 M 1100425\n ) 2023 M 1101376\n THE VILLAGE OF ARLINGTON HEIGHTS, ) 2023 M 300871\n ) 2023 M 300874\n Defendant-Appellee. ) 2023 M 300875, cons.\n )\n ) Honorable\n ) Neil T. Cohen,\n ) Judge, presiding.\n______________________________________________________________________________\n\n PRESIDING JUSTICE ROCHFORD delivered the judgment of the court.\n Justices Lyle and Ocasio concurred in the judgment.\n\n ORDER\n\n¶1 Held: Circuit court properly granted summary judgment in favor of municipality in this\n FOIA proceeding, where municipality complied with both Supreme Court Rule\n 191(a) and the FOIA statute.\n\n¶2 Plaintiff-appellant, Disgrase Felyer, brought five lawsuits against defendant-appellant, the\n\nVillage of Arlington Heights (the Village), pursuant to the Freedom of Information Act (FOIA) (5\n\nILCS 140/1 et seq. (West 2022)), all related to his request for certain records related to plaintiff’s\n\n2022 arrest. Plaintiff’s lawsuits were consolidated, and the Village filed a motion for summary\n\njudgment. The circuit court granted the Village’s motion, ruling that the Village fully complied\n\fNo. 1-24-2292\n\nwith both Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013) and the FOIA statute. Plaintiff has\n\nappealed, and for the following reasons we affirm.\n\n¶3 On December 30, 2022, plaintiff was stopped in his vehicle by the Arlington Heights Police\n\nDepartment. Plaintiff was arrested for (i) improper use of evidences of registration or certificate\n\nof title; (ii) operation of an uninsured motor vehicle; and (iii) failure to display a valid driver’s\n\nlicense. In response to his arrest, between January 3, 2023, and July 22, 2024, plaintiff submitted\n\nto the Village numerous requests pursuant to the FOIA statute for various records related to his\n\narrest (“FOIA requests”). Of note, on February 21, 2023, plaintiff submitted to the Village the\n\nfollowing FOIA requests for the bonds for Village Police Officers Pitor Gacek and Joshua White,\n\nrespectively:\n\n “Pursuant to:\n\n AHMC Chapter 4 104(e), 65 ILCS 5/6-4-9, 65 ILCS 5/3.1 1-10-25 (sic), 65\n\n ILCS 5/3.1-10-30, 65 ILCS 5/1-4-6, and 65 ILCS 5/1-4-7 I am requesting\n\n copies of Officer Piotr Gacek oath and bond.\n\n Pursuant to:\n\n AHMC Chapter 4 104(e), 65 ILCS 5/6-4-9, 65 ILCS 5/3.1 1-10-25 (sic), 65\n\n ILCS 5/3.1-10-30, 65 ILCS 5/1-4-6, and 65 ILCS 5/1-4-7 I am requesting\n\n copies of Officer Joshua White 380 oath and bond.”\n\n¶4 Upon receipt of these specific FOIA requests, Rebecca Hume and Maureen Schmidt, who\n\nare FOIA officers for the Village, conducted a search for the requested bonds. After being unable\n\nto find any bonds for Officer Gacek or Officer White, the Village denied plaintiff’s FOIA requests\n\non February 23, 2023. In its denial notices, Hume explained to plaintiff that the Village was\n\ndenying the FOIA requests because it did not have the bonds.\n\n -2-\n\fNo. 1-24-2292\n\n¶5 Separately, on March 2, 2023, plaintiff also filed a new FOIA request for “the oath and\n\nbond for Maureen Schmidt.” Upon receipt of this FOIA request, Hume and Schmidt conducted a\n\nsearch. Unable to find any bond for Schmidt, or an oath, the Village denied this FOIA request on\n\nMarch 2, 2023. In its denial notice, the Village explained to plaintiff that the Village was denying\n\nthe FOIA request because it did not possess a bond or oath related to Schmidt.\n\n¶6 Subsequently, on March 7, 2023, plaintiff filed another FOIA request: “Pursuant to 65\n\nILCS 5/3.1-10-30 I am requesting copies of records stating Rebecca Hume’s bond.” Upon receipt\n\nof this FOIA request, the Village conducted a search. Unable to find any bond for Hume, the\n\nVillage denied plaintiff’s FOIA request on March 7, 2023. In its denial notice, the Village\n\nexplained to plaintiff that the Village was denying the FOIA request because it did not possess the\n\nbond.\n\n¶7 Over a year after the denial of the FOIA request for Hume’s bond, the Village became\n\naware that the Village’s risk management provider, the Illinois Risk Management Agency\n\n(“IRMA”), possessed a bond related to Hume. The Village obtained a copy of Hume’s bond on\n\nJune 18, 2024. Upon receipt from IRMA of the bond related to Hume, the Village provided it to\n\nplaintiff.\n\n¶8 Unsatisfied with the Village’s response to his FOIA requests, plaintiff filed a total of five\n\nlawsuits against the Village in the circuit court (cases 2023 M 1100425, 2023 M 1101376, 2023\n\nM 300871, 2023 M 300874, and 2023 M 300875). These cases all sought declaratory and other\n\nrelief for the Village’s purported violation of the FOIA statute and were subsequently consolidated\n\nand transferred to the chancery division.\n\n¶9 Separately, on November 4, 2023, nearly nine months after receiving the Village’s denial\n\nto his FOIA requests, plaintiff submitted a challenge of the denial of his FOIA requests to the\n\n -3-\n\fNo. 1-24-2292\n\nIllinois Attorney General’s Public Access Counselor (“PAC”). On March 25, 2024, the PAC issued\n\na ruling in favor of the Village, finding that: (i) the Village properly denied each FOIA request\n\nbecause no such records existed, and (ii) Plaintiff was mistaken in his assertion that the Village\n\nwas required by the Illinois Municipal Code to obtain a bond from police officers. Nevertheless,\n\nplaintiff persisted with his litigation, filing amended complaints on April 8, 2024.\n\n¶ 10 On July 22, 2024, the Village filed its motion for summary judgment as to the amended\n\ncomplaints. The Village’s motion was supported by an affidavit executed by Schmidt. In her\n\naffidavit, Schmidt attested to the facts surrounding the Village’s receipt of plaintiff’s FOIA\n\nrequests, as well as the procedure the Village followed, in accordance with the FOIA statute, by\n\nwhich the Village searched for records and responded to the FOIA requests. The facts contained\n\nwithin the affidavit were alleged to be based on Schmidt’s personal knowledge of events in her\n\nrole as the Village’s Police Records Supervisor. Plaintiff did not offer a counter-affidavit, nor any\n\nother evidence, to contradict the facts contained within Schmidt’s affidavit in his response to the\n\nVillage’s motion. On September 19, 2024, the circuit court granted the Village’s motion.\n\nSubsequently, plaintiff filed a motion to reconsider on October 18, 2024, which the circuit court\n\ndenied on November 6, 2024. Plaintiff filed this appeal on November 18, 2024.\n\n¶ 11 Summary judgment may be entered where “the pleadings, depositions, and admissions on\n\nfile, together with the affidavits, if any, show that there is no genuine issue as to any material fact\n\nand that the moving party is entitled to judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West\n\n2020). We conduct a de novo review of a ruling on a motion for summary judgment. Bank of New\n\nYork Mellon v. Wojcik, 2019 IL App (1st) 180845, ¶ 19. We may affirm a ruling on a motion for\n\nsummary judgment on any basis found in the record. Rosestone Investments, LLC v. Garner, 2013\n\nIL App (1st) 123422, ¶ 23.\n\n -4-\n\fNo. 1-24-2292\n\n¶ 12 The parties’ contentions regarding the relevant provisions of the FOIA statute also present\n\na question of statutory interpretation, which we also review de novo. Millennium Park Joint\n\nVenture, LLC v. Houlihan, 241 Ill. 2d 281, 294 (2010). The rules applicable to this task are well-\n\nestablished and were summarized in Hendricks v. Board of Trustees of the Police Pension Fund,\n\n2015 IL App (3d) 140858, ¶ 14:\n\n “The fundamental rule of statutory interpretation is to ascertain and give effect to the intent\n\n of the legislature. [Citation.] The most reliable indicator of that intent is the language of\n\n the statute itself. [Citation.] In determining the plain meaning of statutory language, a court\n\n will consider the statute in its entirety, the subject the statute addresses, and the apparent\n\n intent of the legislature in enacting the statute. [Citations.] If the statutory language is clear\n\n and unambiguous, it must be applied as written, without resorting to further aids of\n\n statutory interpretation. [Citation.] A court may not depart from the plain language of the\n\n statute and read into it exceptions, limitations, or conditions that are not consistent with the\n\n express legislative intent.”\n\n¶ 13 Here, the FOIA statue itself expressly declares the statute’s public policy and the\n\nlegislature’s intent. Section 1 provides that “it is declared to be the public policy of the State of\n\nIllinois that all persons are entitled to full and complete information regarding the affairs of\n\ngovernment and the official acts and policies of those who represent them as public officials and\n\npublic employees consistent with the terms of this Act.” 5 ILCS 140/1 (West 2022). Section 1 goes\n\non to explain that “[s]uch access is necessary to enable the people to fulfill their duties of\n\ndiscussing public issues fully and freely, making informed political judgments and monitoring\n\ngovernment to ensure that it is being conducted in the public interest.” Id. As such, section 1\n\nprovides that “[i]t is a fundamental obligation of government to operate openly and provide public\n\n -5-\n\fNo. 1-24-2292\n\nrecords as expediently and efficiently as possible in compliance with this Act.” Id. Indeed, section\n\n1.2 of the FOIA statute provides that “[a]ll records in the custody or possession of a public body\n\nare presumed to be open to inspection or copying. Any public body that asserts that a record is\n\nexempt from disclosure has the burden of proving by clear and convincing evidence that it is\n\nexempt.” Id. § 1.2. An individual who has been denied access to records may file an action in the\n\ncircuit court for injunctive or declaratory relief. Chicago Tribune Co. v. Department of Financial\n\n& Professional Regulation, 2014 IL App (4th) 130427, ¶ 23; 5 ILCS 140/11(a) (West 2022).\n\n¶ 14 We first address plaintiff’s contention on appeal, with respect to each of the five\n\nconsolidated lawsuits filed below, that the circuit court improperly granted summary judgment in\n\nfavor of the Village because the affidavit filed in support of the motion failed to comply with\n\nIllinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013). We disagree.\n\n¶ 15 Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013) generally provides that affidavits in\n\nsupport of a motion for summary judgment “shall be made on the personal knowledge of the\n\naffiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense\n\nis based; shall have attached thereto sworn or certified copies of all documents upon which the\n\naffiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall\n\naffirmatively show that the affiant, if sworn as a witness, can testify competently thereto. If all of\n\nthe facts to be shown are not within the personal knowledge of one person, two or more affidavits\n\nshall be used.” “An affidavit satisfies the requirements of Rule 191(a) if from the document as a\n\nwhole it appears the affidavit is based on the personal knowledge of the affiant and there is a\n\nreasonable inference that the affiant could competently testify to its contents.” (Internal quotation\n\nmarks omitted.) Madden v. F.H. Paschen/S.N. Nielson, Inc., 395 Ill. App. 3d 362, 386 (2009).\n\n¶ 16 Here, plaintiff does not assert that Schmidt’s affidavit by itself violates Rule 191(a) in any\n\n -6-\n\fNo. 1-24-2292\n\nway or fails to comply with the rule’s requirements. Indeed, a review of that affidavit reveals that\n\nits content was based on the personal knowledge of Schmidt, and it was reasonable to infer that\n\nSchmidt could competently testify to its contents. Id.\n\n¶ 17 Rather, plaintiff contends that while the motion for summary judgment was supported by\n\nan affidavit executed by Schmidt, Hume was also involved in processing his FOIA requests and\n\nwas the specific Village employee that provided the written responses to the FOIA requests.\n\nPlaintiff contends, therefore, that Hume was also required to file an affidavit, as the record reveals\n\nthat “all the facts involved with the search of the public records are within the personal knowledge\n\nof two persons.” This argument relies upon the specific language in Rule 191(a) (eff. Jan. 4, 2013)\n\nthat “[i]f all of the facts to be shown are not within the personal knowledge of one person, two or\n\nmore affidavits shall be used.”\n\n¶ 18 We reject this contention. The rule only requires two or more affidavits where “all of the\n\nfacts to be shown are not within the personal knowledge of one person.” (Emphasis added.)\n\nPlaintiff does not identify any “facts to be shown” contained in Schmidt’s affidavit that were not\n\nwithin her personal knowledge, such that the Village’s reliance upon her affidavit itself would\n\nviolate Rule 191(a). Rather, he contends that there are additional facts that the Village needed to\n\n“show” to successfully support its motion for summary judgment, and that those facts could only\n\nhave been established via an affidavit executed by Hume. However, we conclude that this\n\nargument goes to the substantive merits and sufficiency of the Village’s motion for summary\n\njudgement, rather than to any failure to comply with Rule 191(a). Whether or not Schmidt’s\n\naffidavit alone was sufficient to support the Village’s motion for summary judgment is an issue\n\nwe will address below in the context of plaintiff’s specific challenges to that ruling.\n\n¶ 19 Plaintiff next contends that summary judgement was improperly granted in favor of the\n\n -7-\n\fNo. 1-24-2292\n\nVillage as to two of the consolidated lawsuits (2023 CH 300871 and 2023 CH 300874) because\n\nthe Village improperly identified him as a “recurrent requester” under the FOIA statute and\n\ntherefore improperly and untimely processed the FOIA requests referenced in these two\n\ncomplaints under that categorization. We again disagree.\n\n¶ 20 As the Village has correctly noted both below and on appeal, the FOIA statute allows\n\ngovernmental bodies additional time (21 business days) to respond to the FOIA requests from a\n\n“recurrent requester,” as defined by the FOIA statute. See 5 ILCS 140/2(g), 3.2 (West 2022). And,\n\nas plaintiff has properly noted both below and on appeal, there is also authority to support the\n\ncontention that separate municipal departments can be considered separate “subsidiary” public\n\nbodies under the FOIA statute. See Board of Regents v. Reynard, 292 Ill. App. 3d 968, 978 (1997);\n\n5 ILCS 140/2(a) (West 2022). However, we reject plaintiff’s contention that he made FOIA\n\nrequests to separate municipal departments of the Village (i.e., the Village’s Clerk and Police\n\nDepartment), those separate requests should therefore not have been viewed together in\n\ndetermining whether he was a “recurrent requester” under the FOIA statute so as to allow the\n\nVillage additional time to respond, and that therefore summary judgment was improperly granted\n\nto the Village on this basis with respect to the specific FOIA requests at issue in cases 2023 CH\n\n300871 and 2023 CH 300874.\n\n¶ 21 While plaintiff has repeatedly contended that he made such separate FOIA requests to the\n\nVillage’s Clerk and Police Department, there is no support in the record for this contention with\n\nrespect to the FOIA requests at issue in cases 2023 CH 300871 and 2023 CH 300874. The FOIA\n\nrequests attached by plaintiff as exhibits to each of those two complaints are simply labeled\n\n“VILLAGE CLERK FOIA,” with no indication that they were alternatively or additionally made\n\nto the Village’s Police Department. Furthermore, Schmidt’s affidavit specifically averred that\n\n -8-\n\fNo. 1-24-2292\n\nplaintiff “submitted 52 FOIA requests to the Village between January 3, 2023, and July 22, 2024.”\n\n(Emphasis added.) As plaintiff filed no counter-affidavit in response, this assertion stands\n\nunrebutted and must be taken as true. See CitiMortgage, Inc. v. Sconyers, 2014 IL App (1st)\n\n130023, ¶ 9 (When not contradicted by counter-affidavit, facts contained in an affidavit provided\n\nin support of a motion for summary judgment are taken as true for the purpose of the motion).\n\nThere is thus no support in those FOIA requests themselves, nor anywhere else in the record, for\n\nplaintiff’s contention that the FOIA requests at issue in cases 2023 CH 300871 and 2023 CH\n\n300874 were improperly identified as having been received from a “recurrent requester.”\n\n¶ 22 Next, we address plaintiff’s last specific argument on appeal, in which he contends that the\n\ncircuit court improperly granted summary judgment in favor of the Village as to count 4 of the\n\ncomplaint he filed in case 2023 M 300875. We disagree.\n\n¶ 23 In that count, Plaintiff specifically alleged that the Village improperly responded to the\n\nFOIA request he submitted to the “FOIA VILLAGE TREASURER” on March 7, 2023, in which\n\nplaintiff requested “copies of records stating Rebecca Hume’s bond.” The Village denied\n\nplaintiff’s FOIA request on March 7, 2023, and in the denial notice Hume explained the Village\n\nwas denying this FOIA request because it did not have possession of the bond. As explained in\n\nSchmidt’s affidavit, that bond was provided to plaintiff a year later when it was found to be in the\n\npossession of the Village’s risk management provider.\n\n¶ 24 On appeal, plaintiff contends that summary judgment was improperly granted to the\n\nVillage as to this count because the Village “failed to conduct a reasonable search for the public\n\nrecords” where “Hume is not the village treasurer nor does she work for the Treasurer’s Office.”\n\nPlaintiff further contends that:\n\n “Over a year later Defendant finally turned over the public records. Rebecca Hume never\n\n -9-\n\fNo. 1-24-2292\n\n submitted an affidavit stating why she denied the request *** and why the public record\n\n was released over a year later. All the Defendant had to do was search the Treasurer’s\n\n Office for the records and if the bond couldn’t be found, simply get a copy [from] the risk\n\n management company. That could have been done within 5 business days or 10 days with\n\n an extension. It was a complete act of bad faith to release the public records over a year\n\n after the FOIA request.”\n\n¶ 25 As discussed above, Schmidt provided an affidavit in which she averred to the Village’s\n\nprocessing of this FOIA request and specifically explained how and why Hume’s bond was not\n\noriginally located and how it was finally delivered to plaintiff. In response, plaintiff provided no\n\ncounter-affidavit or other factual or evidentiary support to contradict those averments. And on\n\nappeal, all plaintiff has presented to this court are his unsubstantiated and unsupported assertions\n\nthat the Village somehow could have and should have taken other actions to respond properly to\n\nthis FOIA request. Again, however, when not contradicted by counter-affidavit, facts contained in\n\nan affidavit provided in support of a motion for summary judgment are taken as true for the purpose\n\nof the motion. Sconyers, 2014 IL App (1st) 130023, ¶ 9. Without being presented with any proper\n\nfactual evidence to the contrary, we must conclude that there is no genuine issue of material fact\n\nwith respect to this claim and that the circuit court properly granted summary judgment in favor\n\nof the Village as to count 4 of the complaint he filed in case 2023 M 300875.\n\n¶ 26 Finally, we note that other than the specific arguments addressed above, plaintiff has raised\n\nno other arguments on appeal challenging the award of summary judgment in favor of the Village\n\non each of the five consolidated cases filed below. He has therefore forfeited any such further\n\nchallenges on appeal. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are\n\nforfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”).\n\n - 10 -\n\fNo. 1-24-2292\n\n¶ 27 For the foregoing reasons, the judgment of the circuit court is affirmed.\n\n¶ 28 Affirmed.\n\n\n\n\n - 11 -\n\f"} {"dedup_key":"2025 IL App (2d) 240488-U","dedup_key_type":"neutral_citation","neutral_citation":"2025 IL App (2d) 240488-U","case_name":"Joel W. Tynis v. The McHenry County Sheriff’s Department","court_level":"Appellate","appellate_district":"2nd","year":2025,"county":"McHenry","appellate_docket":"2-24-0488","circuit_docket":"24-MR-28","published":0,"authoring_justice":"Hutchinson","statute":["FOIA"],"exemptions_cited":["7(1)(c)"],"public_body":"McHenry County Sheriff’s Department","requesting_party":"Joel W. Tynis","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The court affirmed the dismissal of the plaintiff's FOIA complaint, holding that the Sheriff's redactions for personal information and investigative plans were consistent with FOIA exemptions. The court further held that the plaintiff was not entitled to attorney fees or costs because he did not prevail and the defendant did not act in bad faith by relying on Supreme Court Rule 415(c).","best_text_source":"Court Opinions - FOIA/Tynis v. McHenry County Sheriff’s Department, 2025 IL App (2d) 240488-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:10:59.679946","site_category":"General Records Exemptions","date_decided":"2025-05-13","site_url":"/cases/2025%20IL%20App%20(2d)%20240488-U/","text_url":"/case-text/2025%20IL%20App%20(2d)%20240488-U.txt","full_text":" 2025 IL App (2d) 240488-U\n No. 2-24-0488\n Order filed May 13, 2025\n\n NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent\n except in the limited circumstances allowed under Rule 23(e)(1).\n______________________________________________________________________________\n\n IN THE\n\n APPELLATE COURT OF ILLINOIS\n\n SECOND DISTRICT\n______________________________________________________________________________\n\nJOEL W. TYNIS, ) Appeal from the Circuit Court\n ) of McHenry County.\n Plaintiff-Appellant, )\nv. ) No. 24-MR-28\n )\nTHE McHENRY COUNTY SHERIFF’S )\nDEPARTMENT, ) Honorable\n ) Joel D. Berg,\n Defendant-Appellee. ) Judge, Presiding.\n______________________________________________________________________________\n\n JUSTICE HUTCHINSON delivered the judgment of the court.\n Justices McLaren and Jorgensen concurred in the judgment.\n\n ORDER\n\n¶1 Held: (1) Sheriff’s redactions of FOIA responses were consistent with the FOIA’s\n exemptions for personal information and plans for investigation. (2) An award of\n fees, costs, or expenses under the FOIA was not appropriate where plaintiff did not\n prevail in his action to compel FOIA responses and the sheriff did not act willfully\n or in bad faith by relying on a supreme court rule to decline FOIA requests.\n\n¶2 Pro se plaintiff, Joel W. Tynis, appeals a judgment dismissing his complaint (see 735 ILCS\n\n5/2-619(a)(9) (West 2022)) against defendant, the McHenry County Sheriff’s Department, under\n\nthe Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2022)). We affirm.\n\f2025 IL App (2d) 240488-U\n\n\n¶3 I. BACKGROUND\n\n¶4 At all pertinent times, plaintiff was an inmate at the McHenry County Jail, awaiting trial\n\non a charge of drug-induced homicide. On February 8, 2024, he filed his “Complaint for Violation\n\nof the FOIA Government Emails.” The complaint sought copies of text messages and e-mails\n\nrelated to his case. We summarize the complaint and its attachments.\n\n¶5 Plaintiff alleged that, on January 1, 2024, he made the following requests to defendant,\n\nseeking materials associated with certain law enforcement officers:\n\n “Any and all forms of electronic Communications Sent and/or received including\n\n but not limited to: Emails and text messages—From Any and All members of the McHenry\n\n County task for [sic] and/or sheriff’s office, created Any and All hours of 01/06/2022,\n\n included [sic] but not limited to, communication regarding the dispatch and investigation\n\n to the 911 response to [a McHenry address] and the later survielance [sic] performed at [a\n\n Holiday Hills address], for your report #SO-22-540—with any personal information\n\n redacted and An Index of any and All records being withheld.”\n\n “[A]ny and all forms of electronic communication sent and/or received, including\n\n but not limited to: Email and text messages—from Deputy K. Wendt (SO-2142), Created\n\n during any and all hours of 01/06/2022, to be included but not limited to, communications\n\n regarding 1.) your report SO-22-2540 2.) [plaintiff] 3.) Investigations 4.) Case 22cf16\n\n 5.) Case 22cf14 6.) Evidence logs, et. cetera. With any personal information redacted—\n\n please include information of the types of search performed and an index of any and all\n\n records being withheld.”\n\n “Any and all forms of electronic Communication sent and/or received, including\n\n but not limited to: Emails and text messages—from deputy Ryan Ehardt (SO-6920)—\n\n\n\n -2-\n\f2025 IL App (2d) 240488-U\n\n\n created during Any and All hours of 01/05/2022—through 01/07/2022, and Also\n\n 02/02/2022—through 02/03/2022, to be included but not limited to communications\n\n regarding: 1) your report #SO-22-540 2) [plaintiff] 3) warrant(s) and any application\n\n thereof 4) investigations 5) Arrests 6) probable cause—with any personal information\n\n redacted. And an index of Any and all records being withheld ***.”\n\n “Any and all forms of electronic communication Sent and/or Received including\n\n but not limited to: Emails and text messages from—Joshua Singer (SO 6653), Created\n\n during Any and All hours of 03/27/2022—through 03/29/2022, And Also 01/31/2022—\n\n through 02/02/2022, to be included but not limited to, Communications regarding 1) your\n\n report #SO-22-540 2) [plaintiff] 3) cell phone Analysis 4) warrants 5) investigations\n\n 6) case #22CF16, With any personal information redacted and an Index of Any and All\n\n records being withheld.”\n\n¶6 Sometime in mid-January 2024, plaintiff requested “ ‘a search of Sgt. Urgo, Deputy Lee,\n\nand Deputy Sosnowski, for any and all hours of 01/06/2022.’ ”\n\n¶7 Plaintiff attached to his complaint defendant’s responses from mid-to-late January 2024.\n\nDefendant responded as follows. Singer “ha[d] no text messages in relation to [plaintiff’s] case or\n\nthe time frames that [he was] requesting ***.” However, defendant included a copy of an e-mail\n\nfrom Singer that met plaintiff’s request. Defendant noted that it had redacted portions of the e-mail\n\nper the following exemptions in sections 7(1)(b) and (c) of the FOIA:\n\n “(b) Private information, unless disclosure is required by another provision of this\n\n Act, a State or federal law or a court order.\n\n ***\n\n\n\n\n -3-\n\f2025 IL App (2d) 240488-U\n\n\n (c) Personal information contained within public records, the disclosure of which\n\n would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure\n\n is consented to in writing by the individual subjects of the information.” 5 ILCS\n\n 140/7(1)(b), (c) (West 2022).\n\n¶8 As to Wendt, he “was not in possession of any text messages dating back to 2022 involving\n\n[plaintiff] and/or this case.” Also, “[t]he emails that were produced during the search for [Wendt’s]\n\nemail address [were] not releasable” because they contained “classified information that could not\n\nbe redacted, such as witness, juvenile and confidential information leading up to the search warrant\n\nthat would release unique investigative techniques.” The search also produced Law Enforcement\n\nAgencies Data System (LEADS) data, which “cannot be released to any individual or organization\n\nthat is not legally authorized.”\n\n¶9 Defendant’s response regarding Wendt relied on three exemptions. The first two were set\n\nforth in sections 7(1)(d)(iv) and (v) of the FOIA:\n\n “(d) Records in the possession of any public body created in the course of\n\n administrative enforcement proceedings and any law enforcement or correctional agency\n\n for law enforcement purposes, but only to the extent that disclosure would:\n\n ***\n\n (iv) unavoidably disclose the identity of a confidential source, confidential\n\n information furnished only by the confidential source, or persons who file\n\n complaints with or provide information to administrative, investigative, law\n\n enforcement, or penal agencies ***.\n\n (v) disclose unique or specialized investigative techniques other than those\n\n generally used and known or disclose internal documents of correctional agencies\n\n\n\n -4-\n\f2025 IL App (2d) 240488-U\n\n\n related to detection, observation or investigation of incidents of crime or\n\n misconduct, and disclosure would result in demonstrable harm to the agency or\n\n public body that is the recipient of the request.” Id. § 7(1)(d)(iv), (v).\n\n The third exemption was in section 1240.80(d) of Title 20 of the Administrative Code (20 Ill.\n\n Adm. Code, § 1240.80(d) (2017)): “LEADS data shall not be disseminated to any individual or\n\n organization that is not legally authorized to have access to the information.” See 5 ILS\n\n 140/7(1)(a) (West 2022) (exempting “[i]nformation specifically prohibited from disclosure by\n\n federal or State law or rules and regulations implementing federal or State law”). Defendant\n\n explained that “[t]he public is not entitled to view or possess data that is transmitted through,\n\n received through, or stored in LEADS.”\n\n¶ 10 As to Ehardt, defendant told plaintiff that Ehardt “was not in possession of any text\n\nmessages dating back to 2022 involving [plaintiff] and/or this case.” Defendant also noted that\n\nplaintiff requested Ehardt’s e-mails relating to pending criminal cases against plaintiff. Therefore,\n\ndefendant reasoned, disclosure to plaintiff was barred by Illinois Supreme Court Rule 415(c) (eff.\n\nOct. 1, 1971), which provides that “[a]ny materials furnished to an attorney pursuant to these rules\n\nshall remain in his or her exclusive custody unless the court authorizes dissemination pursuant to\n\nthis rule ***.” Defendant informed plaintiff that the e-mails “need[ed] to be requested through\n\n[his] attorney.”\n\n¶ 11 As to Urgo, Lee, and Sosnowski, defendant stated that its search uncovered seven pertinent\n\ne-mails but that all were exempt as LEADS information.\n\n¶ 12 Plaintiff’s complaint sought, inter alia, (1) “an order by the court requiring the defendant[ ]\n\nto produce the requested records with any exempted material redacted” and (2) an award of fees,\n\n\n\n\n -5-\n\f2025 IL App (2d) 240488-U\n\n\ncosts, and penalties against defendant for its violations of the FOIA, which plaintiff alleged were\n\nin bad faith.\n\n¶ 13 Defendant did not file an answer but instead moved to dismiss the complaint. Not invoking\n\nany exemptions it had cited in its responses to plaintiff’s requests, defendant relied solely on\n\nsection 7(1)(f) of the FOIA (5 ILCS 140/7(1)(f) (West 2022)), which exempts\n\n “[p]reliminary drafts, notes, recommendations, memoranda, and other records in which\n\n opinions are expressed, or policies or actions are formulated, except that a specific record\n\n or relevant portion of a record shall not be exempt when the record is publicly cited and\n\n identified by the head of the public body.”\n\n¶ 14 The trial court ordered defendant “to tender redacted and unredacted copies of responsive\n\ndocuments to [the court] for a confidential in camera inspection ***.” At the hearing on the motion\n\nto dismiss, the court noted that it had reviewed defendant’s responses “with a fine tooth comb.”\n\nThe court explained that it found defendant in full compliance with the FOIA:\n\n “[T]here are *** differences on nearly every page that [plaintiff] received. Those\n\n differences are generally the redaction of an address or a date of birth or a phone number,\n\n all of which are properly redactable under the FOIA ***, very clearly.\n\n The few things that are redacted under the investigative technique [sic] are pretty\n\n much limited to the manner in which it went forth.\n\n I found two sentences that were removed from one paragraph. Those two sentences\n\n *** were clearly an investigative track that they were following. That is confidential.\n\n ***\n\n The few things that are not contained within what they gave [plaintiff] are, as I said,\n\n generally speaking addresses, methods of communication.\n\n\n\n -6-\n\f2025 IL App (2d) 240488-U\n\n\n There are only two or three lines of substantive information that are not contained\n\n in what [defendant] gave [plaintiff], and those lines are future investigations. And then\n\n there [is] a stack of the criminal records reports run for [plaintiff] and some other people,\n\n all of which are also protected information ***.”\n\nAccordingly, the court granted the motion to dismiss. Plaintiff filed a motion to reconsider, which\n\nthe court denied. Plaintiff timely appealed.\n\n¶ 15 II. ANALYSIS\n\n¶ 16 On appeal, plaintiff contends that (1) the trial court’s reliance on section 7(1)(f) of the\n\nFOIA in dismissing his complaint was erroneous because that exemption does not apply to the\n\ndocuments at issue and (2) the trial court erred in refusing to assess fees, costs, or penalties against\n\ndefendant. Defendant responds that (1) section 7(1)(f) of the FOIA exempts the redacted matter\n\nfrom disclosure, (2) other exemptions also protect the redacted matter, and (3) the trial court\n\nproperly refused to assess fees, costs, or penalties against defendant. We hold that dismissal was\n\nproper under the alternative exemptions defendant cites, and we do not consider whether section\n\n7(1)(f) also applies. We further hold that the court did not err in declining to assess fees, costs, or\n\npenalties against defendant.\n\n¶ 17 Whether an exemption applies under the FOIA is a question of law, which we review\n\nde novo. Garlick v. Naperville Township, 2017 IL App (2d) 170025, ¶ 44.\n\n¶ 18 At issue are nine e-mails and two criminal history reports. We turn first to the e-mails. The\n\ntrial court examined two versions of each: original and redacted. The e-mails were sent and\n\nreceived as follows:\n\n (1) January 6, 2022, at 7:47 p.m. from Ehardt to other McHenry County employees\n\n regarding the arrest and search of defendant;\n\n\n\n -7-\n\f2025 IL App (2d) 240488-U\n\n\n (2) January 7, 2022, at 7:34 p.m. from Officer Korie Sergot to three others relating that,\n\n after arriving at the jail, defendant requested and was permitted to speak about a “deal”;\n\n (3) January 7, 2022, at 9:49 p.m. from a McHenry County employee to Ehardt and Urgo\n\n stating that defendant “would like to talk”;\n\n (4) February 1, 2022, at 7:19 p.m., from Ehardt to Singer recounting Ehardt’s investigation\n\n of a drug deal that occurred on January 5 and 6, 2022;\n\n (5) Singer’s response to Ehardt on February 3, 2022, at 6:54 a.m.;\n\n (6) February 2, 2022, at 9:59 a.m. from a McHenry County employee to Ehardt reminding\n\n him of three upcoming grand jury sessions—one in defendant’s case and two in apparently\n\n unrelated cases;\n\n (7) February 3, 2022, at 12:49 p.m., from Ehardt to Sosnowski requesting the submission\n\n of evidence for testing;\n\n (8) Sosnowski’s response to Ehardt at 12:53 p.m. that day; and\n\n (9) Ehardt’s reply to Sosnowski at 1:01 p.m. that day.\n\nAlthough plaintiff requested texts and e-mails to and from Wendt, none appear in the record.\n\n¶ 19 E-mail addresses were redacted from all the e-mails. Those redactions were within section\n\n7(1)(b) of the FOIA (5 ILCS 140/7(1)(b) (West 2022)), which exempts private information. See\n\nHeinrich v. White, 2012 IL App (2d) 110564, ¶ 14. Only e-mails (4) and (6) had additional\n\nredactions. Defendant redacted from e-mail (6) the name of the sender and the names of two cases\n\nthat had no connection to defendant; thus, that redacted material was outside the scope of his\n\nrequest. From e-mail (4), defendant redacted (a) the address and phone number of the victim and\n\n(b) Ehardt’s plan for further investigating the case. Redaction (a) was proper because the material\n\nwas private information. See id. Redaction (b) was within section 7(1)(d)(i) of the FOIA (id.\n\n\n\n -8-\n\f2025 IL App (2d) 240488-U\n\n\n§ 7(1)(d)(i)), which exempts law enforcement agency records, the disclosure of which would\n\n“interfere with pending or actually and reasonably contemplated law enforcement proceedings.”\n\n¶ 20 We turn to the criminal history reports for plaintiff and his roommate. Each consisted of\n\n(1) personal information, e.g., date of birth, address, height, weight, and appearance, driver’s\n\nlicense and vehicles, and employment history; and (2) LEADS information detailing the person’s\n\narrest record and criminal charges. The trial court upheld defendant’s refusal to provide either of\n\nthese documents, as their contents fell under the exemptions for private information (§ 7(1)(b))\n\nand LEADS information (see 20 Ill. Adm. Code, § 1240.80(d) (2017) (prohibiting dissemination\n\nof LEADS information to those not legally authorized to receive it); 5 ILCS 140/7(1)(a) (West\n\n2022) (exempting “[i]nformation specifically prohibited from disclosure by federal or State law or\n\nrules and regulations implementing federal or State law”)).\n\n¶ 21 We conclude that the trial court did not err in dismissing plaintiff’s complaint after finding\n\nthat defendant had complied with the FOIA.\n\n¶ 22 We turn to plaintiff’s contention that the trial court erred in declining to assess fees, costs,\n\nor penalties against defendant under sections 11(i) and (j) of the FOIA (id. § 11 (i), (j)). Section\n\n11(i) states: “If a person seeking the right to inspect or receive a copy of a public record prevails\n\nin a proceeding under this Section, the court shall award such person reasonable attorney’s fees\n\nand costs.” No award is appropriate under this provision, as plaintiff did not prevail in this\n\nproceeding; the court granted him no additional disclosures beyond what defendant had already\n\nprovided. Id. § 11 (i).\n\n¶ 23 Section 11(j) provides that the court shall impose a civil penalty where the public body\n\n“willfully and intentionally failed to comply” with the FOIA or “otherwise acted in bad faith.” Id.\n\n§ 11(j). Plaintiff contends that penalties were warranted because defendant willfully violated the\n\n\n\n -9-\n\f2025 IL App (2d) 240488-U\n\n\nFOIA by initially claiming that disclosure of the requested materials was barred by Rule 415(c),\n\nwhich provides that “[a]ny materials furnished to an attorney pursuant to these rules shall remain\n\nin his or her exclusive custody unless the court authorizes dissemination pursuant to this rule ***.”\n\nIll. S. Ct. R. 415(c) (eff. Oct. 1, 1971). According to plaintiff, at the time defendant invoked Rule\n\n415(c), the requested materials had already been ordered to be disclosed as discovery in plaintiff’s\n\ncriminal cases. However, that discovery order is not in the record in this appeal, as plaintiff\n\nconcedes. We may not consider evidence outside the record. See Paluch v. United Parcel Service,\n\nInc., 2014 IL App (1st) 130621, ¶ 23. Moreover, we have no basis to conclude that defendant knew\n\nthat reliance on Rule 415(c) was baseless or otherwise acted in bad faith. We also note that\n\ndefendant did not violate the FOIA by raising an arguably applicable exemption that it did not\n\ninvoke originally. See Kopchar v. City of Chicago, 395 Ill. App. 3d 762, 769-70 (2009).\n\n¶ 24 III. CONCLUSION\n\n¶ 25 For the reasons stated, we affirm the judgment of the circuit court of McHenry County.\n\n¶ 26 Affirmed.\n\n\n\n\n - 10 -\n\f"} {"dedup_key":"2025 IL App (2d) 250071-U","dedup_key_type":"neutral_citation","neutral_citation":"2025 IL App (2d) 250071-U","case_name":"Bradley Walters v. McHenry County Sheriff’s Office","court_level":"Appellate","appellate_district":"2nd","year":2025,"county":"McHenry","appellate_docket":"2-25-0071","circuit_docket":"24-MR-219","published":0,"authoring_justice":"Birkett","statute":["FOIA"],"exemptions_cited":[],"public_body":"McHenry County Sheriff’s Office","requesting_party":"Bradley Walters","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The court held that the plaintiff's FOIA appeal was not moot because he sought civil penalties and had not received the records from the defendant. On the merits, the court affirmed the dismissal, ruling that under FOIA, the 50-page free-of-charge provision applies to the requester rather than to each individual request bundled together.","best_text_source":"Court Opinions - FOIA/Walters v. McHenry County Sheriffs Office 2025 IL App (2d) 250071-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:11:00.161107","site_category":"Fees & Burdensome Requests","date_decided":"2025-11-18","site_url":"/cases/2025%20IL%20App%20(2d)%20250071-U/","text_url":"/case-text/2025%20IL%20App%20(2d)%20250071-U.txt","full_text":" 2025 IL App (2d) 250071-U\n No. 2-25-0071\n Order filed November 18, 2025\n\n NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent\n except in the limited circumstances allowed under Rule 23(e)(1).\n______________________________________________________________________________\n\n IN THE\n\n APPELLATE COURT OF ILLINOIS\n\n SECOND DISTRICT\n______________________________________________________________________________\n\nBRADLEY WALTERS, ) Appeal from the Circuit Court\n ) of McHenry County.\n Plaintiff-Appellant, )\n )\nv. ) No. 24-MR-219\n )\nMcHENRY COUNTY SHERIFF’S OFFICE, ) Honorable\n ) Joel D. Berg,\n Defendant-Appellee. ) Judge, Presiding.\n______________________________________________________________________________\n\n JUSTICE BIRKETT delivered the judgment of the court.\n Justices Hutchinson and Mullen concurred in the judgment.\n\n ORDER\n\n¶1 Held: (1) Plaintiff’s appeal from the dismissal of his complaint under the Freedom of\n Information Act (FOIA) was not moot because (a) although plaintiff received the\n requested documents since filing his complaint, he did not receive them from\n defendant sheriff’s office but from another source and (b) plaintiff requested, as\n relief, not only production of the requested documents but also a civil penalty.\n (2) Defendant complied with FOIA; contrary to plaintiff’s interpretation of the\n statute, he was not entitled to 50 pages free of charge for each of his six separate\n requests (which he bundled in one envelope); rather, as a “requester,” he was\n entitled simply to 50 pages free of charge.\n\n¶2 Pro se plaintiff, Bradley Walters, filed a complaint against defendant, the McHenry County\n\nSheriff’s Office, alleging that defendant violated the Illinois Freedom of Information Act (FOIA)\n\n(5 ILCS 140/1 et seq. (West 2022)) by charging plaintiff fees for copies of certain requested\n\f2025 IL App (2d) 250071-U\n\n\ndocuments. The trial court granted defendant’s motion to dismiss the complaint under section 2-\n\n615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2022)) for failure to state a\n\nclaim. Plaintiff timely appeals. We affirm.\n\n¶3 I. BACKGROUND\n\n¶4 Plaintiff’s complaint alleged that, on August 9, 2024, he submitted to defendant “six FOIA\n\nrequest[s] on six separate peices [sic] of paper.” Each request sought a copy of a Department of\n\nCorrections (DOC) inspection report for a different year—2016, 2017, 2018, 2019, 2023, and\n\n2024. Defendant responded to the six requests by letter dated August 21, 2024. Defendant\n\nprovided plaintiff with “50 pages total,” which comprised only two of the requested reports.\n\nDefendant requested that plaintiff pay a fee of $0.15 per page for “the 113 remaining pages.”\n\nPlaintiff claimed that, under section 6(b) of FOIA (5 ILCS 140/6(b) (West 2022)), he should have\n\nreceived the first 50 pages, free of charge, of each separately requested record. Thus, he alleged\n\nthat defendant violated FOIA by refusing to provide plaintiff with all or part of the remaining\n\ndocuments without charge. Plaintiff asked the trial court to order defendant to provide the\n\ndocuments to plaintiff. In addition, he sought (1) $15,000 in compensatory damages, (2) $20,000\n\nin nominal and punitive damages, (3) a $5,000 civil penalty against defendant for each unfulfilled\n\nrequest, and (4) costs incurred in the suit.\n\n¶5 Defendant moved to dismiss the complaint under section 2-615 of the Code (735 ILCS 5/2-\n\n615 (West 2022)). Defendant attached to its motion (1) plaintiff’s six individual requests and\n\n(2) its August 21, 2024, letter, which provided defendant with “copies of the first 50 pages of\n\nresponsive documents per [his] FOIA request” and requested $16.95 for the “additional 113\n\npages.” Defendant contended that, under section 6(b) of FOIA (5 ILCS 140/6(b) (West 2022)), a\n\npublic body may charge a fee of $0.15 per page for black-and-white copies exceeding 50 pages.\n\n\n\n -2-\n\f2025 IL App (2d) 250071-U\n\n\nAccording to defendant, because plaintiff’s requests were submitted together “in one envelope on\n\nthe same date” and “sought similar documents,” defendant “aggregated and combined [p]laintiff’s\n\nsix pages to promote administrative efficiency and to prevent the circumvention of FOIA’s fee\n\nprovisions.” Defendant argued further that, although FOIA “provides specific remedies for\n\nnoncompliance, such as injunctive relief and civil penalties for willful violations,” FOIA “does not\n\nauthorize compensatory or punitive damages.”\n\n¶6 In response, plaintiff argued generally that his requests were separate requests and that\n\ndefendant did not have the authority to combine them. As “proof” that defendant willfully\n\ndisregarded FOIA, plaintiff noted that “he has filed the exact same FOIA request in the exact same\n\nmanner with [ ]DOC and has received these documents with no fee.”\n\n¶7 In reply, defendant argued that the matter was moot since plaintiff conceded that he now\n\npossessed the documents he sought.\n\n¶8 A hearing took place on February 13, 2025. Following the parties’ arguments, the trial\n\ncourt stated:\n\n “[Plaintiff], you made a request. It was all in the same envelope. It’s the same request.\n\n That means that after 50 pages it doesn’t matter if your requests were on six different sheets\n\n of paper. *** It was one request all made at the same time in the same envelope. They\n\n are allowed to charge for anything beyond 50 pages.”\n\nThus, the court granted defendant’s motion and dismissed plaintiff’s complaint with prejudice.\n\nThe court did not consider whether the matter was moot.\n\n¶9 This timely appeal followed.\n\n¶ 10 II. ANALYSIS\n\n\n\n\n -3-\n\f2025 IL App (2d) 250071-U\n\n\n¶ 11 Plaintiff contends that the trial court erred in granting defendant’s motion to dismiss\n\nbecause he stated a claim that defendant violated FOIA. According to plaintiff, because he filed\n\nsix separate requests, section 6(b) of FOIA (5 ILCS 140/6(b) (West 2022)) entitled him to the first\n\n50 pages, free of charge, for each separately requested document. In response, defendant argues\n\nthat the trial court properly determined that defendant’s six requests constituted one request for\n\npurposes of section 6(b) and that, thus, plaintiff’s claim that defendant violated FOIA by assessing\n\nfees fails as a matter of law. Defendant argues further that the matter is moot because, as plaintiff\n\nconceded below, he obtained the requested documents from DOC.\n\n¶ 12 A motion to dismiss under section 2-615 of the Code challenges the legal sufficiency of a\n\ncomplaint based on defects apparent on its face. Wilson v. County of Cook, 2012 IL 112026, ¶ 14.\n\nThe critical inquiry in reviewing a dismissal under section 2-615 is whether the allegations in the\n\ncomplaint, construed in the light most favorable to the plaintiff, are sufficient to state a cause of\n\naction upon which relief may be granted. Doe-3 v. McLean County Unit District No. 5 Board of\n\nDirectors, 2012 IL 112479, ¶ 16. In making this determination, the court accepts as true all well-\n\npleaded facts and all reasonable inferences that may be drawn from those facts. Marshall v. Burger\n\nKing Corp., 222 Ill. 2d 422, 429 (2006). This court reviews de novo a trial court order granting a\n\nsection 2-615 motion. Northwestern Illinois Area Agency on Aging v. Basta, 2022 IL App (2d)\n\n210234, ¶ 33. We may affirm the judgment on any grounds apparent in the record, regardless of\n\nthe court’s reasoning. iMotorsports, Inc. v. Vanderhall Motor Works, Inc., 2022 IL App (2d)\n\n210785, ¶ 13.\n\n¶ 13 To the extent our review requires us to interpret relevant provisions of a statute, we do so\n\nde novo. See Thomas v. Weatherguard Construction Company, Inc., 2018 IL App (1st) 171238,\n\n¶ 63. The plain language of a statute is the best indicator of the legislature’s intent. Lee v. John\n\n\n\n -4-\n\f2025 IL App (2d) 250071-U\n\n\nDeere Insurance Co., 208 Ill. 2d 38, 43 (2003). When that language is clear, it will be given effect\n\nwithout resort to other aids of statutory construction. Id.\n\n¶ 14 Before reaching the issue, we first address defendant’s claim that the matter is moot.\n\n“Because the existence of an actual controversy is a prerequisite for appellate jurisdiction,\n\nreviewing courts generally will not decide matters that are abstract, hypothetical, or moot.”\n\nGarlick v. Bloomingdale Township, 2018 IL App (2d) 171013, ¶ 38. “An issue is moot where an\n\nactual controversy no longer exists between the parties, or where events have occurred that make\n\nit impossible for the court to grant effective relief.” Id. Defendant argues that, here, because\n\nplaintiff conceded below that he had received the requested documents from DOC, the matter is\n\nmoot.\n\n¶ 15 In support, defendant cites Turner v. Joliet Police Department, 2019 IL App (3d) 170819,\n\n¶ 12, claiming that it stands for the proposition that “[o]nce disclosure occurs—regardless of\n\nsource—there is no longer a live controversy for the court to resolve.” Defendant’s reliance on\n\nTurner is misplaced. In Turner, the plaintiff submitted a FOIA request to the defendant, seeking\n\ncriminal records “concerning him or relating to his February 2017 arrest.” Id. ¶ 3. The defendant\n\nprovided the plaintiff with redacted portions of the records, claiming FOIA exemptions. Id. The\n\nplaintiff filed a complaint against the defendant under FOIA, claiming the redactions did not\n\ncomply with FOIA. Id. ¶ 4. The defendant submitted the unredacted records to the trial court,\n\nwhich viewed them in camera and determined that the claimed exemptions applied. Id. ¶¶ 5, 22.\n\nThe trial court dismissed the plaintiff’s complaint. Id. ¶ 5. The plaintiff filed his notice of appeal.\n\nId. Subsequently, the criminal proceedings related to the February 2017 arrest were concluded,\n\nand the defendant released the unredacted records to the plaintiff after determining that the claimed\n\nexemptions no longer applied. Id. ¶¶ 3, 6, 22. The reviewing court agreed with the defendant that\n\n\n\n -5-\n\f2025 IL App (2d) 250071-U\n\n\nthe issue was moot because the defendant had supplied the requested documents. Id. ¶ 13. Since\n\nthe documents in Turner were produced by the agency from which they were requested, Turner\n\ndoes not stand for the proposition that a FOIA action becomes moot simply once disclosure occurs,\n\n“regardless of [the] source.” Here, unlike in Turner, plaintiff received the documents not from\n\ndefendant but from another source.\n\n¶ 16 Moreover, even if plaintiff’s prayer for production could be deemed moot, he sought,\n\namong other things, a civil penalty. See 5 ILCS 140/11(j) (West 2022) (“If the court determines\n\nthat a public body willfully and intentionally failed to comply with this Act, or otherwise acted in\n\nbad faith, the court shall also impose upon the public body a civil penalty of not less than $2,500\n\nnor more than $5,000 for each occurrence.”). Thus, his claim would survive. See Roxana\n\nCommunity Unit School District No. 1 v. Environmental Protection Agency, 2013 IL App (4th)\n\n120825, ¶ 42 (declining to find the plaintiffs’ FOIA claim moot because, although the plaintiffs\n\neventually received the requested records, the plaintiffs’ claims for attorney fees and a civil penalty\n\nwould survive).\n\n¶ 17 We turn to the merits. At issue here is section 6(b) of FOIA (5 ILCS 140/6(b) (West 2022)),\n\ntitled “[a]uthority to charge fees,” which provides, in pertinent part:\n\n “(b) Except when a fee is otherwise fixed by statute, each public body may charge\n\n fees reasonably calculated to reimburse its actual cost for reproducing and certifying public\n\n records ***. No fees shall be charged for the first 50 pages of black and white, letter or\n\n legal sized copies requested by a requester. The fee for black and white, letter or legal\n\n sized copies shall not exceed 15 cents per page. *** In calculating its actual cost for\n\n reproducing records or for the use of the equipment of the public body to reproduce records,\n\n\n\n\n -6-\n\f2025 IL App (2d) 250071-U\n\n\n a public body shall not include the costs of any search for and review of the records or\n\n other personnel costs associated with reproducing the records[.] ***.” 1\n\n¶ 18 Plaintiff’s position is that he is entitled to the first 50 pages, free of charge, of each\n\nseparately requested public record. Thus, under his interpretation of the statute, because he\n\nrequested six distinct records using six separate pieces of paper, each request constituted a single\n\npublic record request, despite being submitted in a single envelope. Defendant seemingly accepts\n\nplaintiff’s interpretation that individual pieces of paper can constitute distinct requests, but\n\ncontends that it had the authority to aggregate them into a single request. The trial court also\n\nseemingly adopted defendant’s position, noting further that it did not “matter if [the] requests were\n\non six different sheets of paper” because the requests were “made at the same time in the same\n\nenvelope.” We agree the complaint should be dismissed, but for a different reason.\n\n¶ 19 The plain language of the statute makes clear that “[n]o fees shall be charged for the first\n\n50 pages of black and white, letter or legal sized copies requested by a requester.” (Emphases\n\nadded.) Id. Neither defendant nor the trial court has noted this language. (Indeed, as we pointed\n\nout, defendant incorrectly quoted the statute in its brief and, in doing so, failed to include this\n\nlanguage.) In any event, contrary to plaintiff’s position, the statute does not provide that no fees\n\nshall be charged for the first 50 pages of each distinct request; rather, it provides that “[n]o fees\n\n\n 1\n Defendant’s brief purports to quote section 6(b) of FOIA “in relevant part:”\n\n “ ‘Each public body may charge fees reasonably calculated to reimburse its actual cost for\n\n reproducing and certifying public records… The first 50 pages of black and white, letter or legal-\n\n sized copes shall be provided free of charge. Thereafter, the fee for black and white copies shall\n\n not exceed 15 cents per page.’ ” (Emphases omitted.)\n\n This is not an accurate quote.\n\n\n\n -7-\n\f2025 IL App (2d) 250071-U\n\n\nshall be charged for the first 50 pages *** requested by a requester.” (Emphasis added.) Id. Thus,\n\nwhether plaintiff’s requests were technically separate and distinct requests for different public\n\nrecords is of no consequence, because it is plaintiff’s status as a single requester that controls.\n\nUnder the plain language of the statute, plaintiff—the “requester”—was entitled to “the first 50\n\npages *** requested” from defendant—the “public body”—free of charge. Id. Defendant\n\nprovided 50 free pages to plaintiff and properly assessed fees for the additional 113 pages. Thus,\n\nplaintiff has not stated a valid claim against defendant for a FOIA violation, and the court was\n\ncorrect to dismiss his complaint.\n\n¶ 20 III. CONCLUSION\n\n¶ 21 For the reasons stated, we affirm the judgment of the circuit court of McHenry County\n\ndismissing plaintiff’s complaint with prejudice.\n\n¶ 22 Affirmed.\n\n\n\n\n -8-\n\f"} {"dedup_key":"2025 IL App (3d) 250046-U","dedup_key_type":"neutral_citation","neutral_citation":"2025 IL App (3d) 250046-U","case_name":"Bobby R. Turner, Jr. v. Amy Vedra","court_level":"Appellate","appellate_district":"3rd","year":2025,"county":"Du Page","appellate_docket":"3-25-0046","circuit_docket":"24-MR-356","published":0,"authoring_justice":"Bertani","statute":["FOIA"],"exemptions_cited":[],"public_body":"Naperville Police Records Department","requesting_party":"Bobby R. Turner, Jr.","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The circuit court properly granted the respondent's motion to dismiss because no records existed responsive to the petitioner's FOIA request. Furthermore, the court held that a self-represented litigant who does not prevail in a FOIA action is not entitled to attorney fees.","best_text_source":"Court Opinions - FOIA/cleaned_text_files/Turner v. Vedra 2025 IL App (3d) 250046-U.txt","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:11:00.492382","site_category":"FOIA Response Process","date_decided":"2025-12-03","site_url":"/cases/2025%20IL%20App%20(3d)%20250046-U/","text_url":"/case-text/2025%20IL%20App%20(3d)%20250046-U.txt","full_text":"NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except\r\nin the limited circumstances allowed under Rule 23(e)(1).\r\n2025 IL App (3d) 250046-U\r\nOrder filed December 3, 2025\r\n____________________________________________________________________________\r\nIN THE\r\nAPPELLATE COURT OF ILLINOIS\r\nTHIRD DISTRICT\r\n2025\r\nBOBBY R. TURNER, JR., ) Appeal from the Circuit Court\r\n) of the 18th Judicial Circuit,\r\nPetitioner-Appellant, ) Du Page County, Illinois,\r\n)\r\nv. ) Appeal No. 3-25-0046\r\n) Circuit No. 24-MR-356\r\n)\r\nAMY VEDRA, FOIA Officer, Naperville, ) Honorable\r\nIllinois Police Records Department, ) Anne Therieau Hayes,\r\n) Judge, Presiding.\r\nRespondent-Appellee. )\r\n____________________________________________________________________________\r\nJUSTICE BERTANI delivered the judgment of the court.\r\nJustices Peterson and Davenport concurred in the judgment.\r\n____________________________________________________________________________\r\nORDER\r\n\r\n¶ 1\r\nHeld: The circuit court properly granted respondent's s motion to dismiss when she asserted a valid affirmative defense that no records existed responsive to petitioner's s Freedom of Information Act request; self-represented petitioner is not entitled to attorney fees.\r\n\r\n¶ 2\r\nPetitioner, Bobby R. Turner Jr., appeals the dismissal of his petition for judicial review pursuant to the Freedom of Information Act (FOIA). On appeal, he contends the circuit court erred in granting the motion to dismiss filed by respondent, Amy Vedra, and requests attorney fees despite the fact that he pursued the matter as a self-represented litigant. We affirm.\r\n\r\n¶ 3\r\nI. BACKGROUND\r\n\r\n¶ 4\r\nTurner submitted a FOIA records request to the City of Naperville on November 30, 2023. The request sought records pertaining to recording or listening devices that may have been used by law enforcement personnel relating to Turner's s residence and phone numbers and court documentation that allowed those recording and listening devices to be used. He received a letter from Vedra, a FOIA officer for the City Police Records Department, stating that his request was denied in full. In the form letter sent to Turner, Vedra included a comment that “7(1)(a) of FOIA allows a public body to withhold ‘[i]nformation specifically prohibited by federal or state law or rules and regulations implementing federal or state law,’ ” and that “[s]earch warrants are to be impounded by the Circuit Court Clerk and not disclosed or released to the public.” The first option presented on the form letter, but not selected by Vedra, read as follows: “NO RECORDS FOUND: There are no records responsive to all or some part of this request for records.”\r\n\r\n¶ 5\r\nTurner submitted a second request under FOIA on April 9, 2024, requesting the same records as the prior request, as well as internet service records. He received a second letter that same day denying the request in full with the same explanation as the first.\r\n\r\n¶ 6\r\nOn Friday, June 7, 2024, Turner, as a self-represented litigant, filed a petition for judicial review that the circuit court accepted on Monday, June 10, 2024, and mailed it to the City. Jill Lawrence, a supervisor in the records department, conducted an independent search for the records requested. After contacting members of the police department, Lawrence concluded that it had no records responsive to Turner's s request. She e-mailed Turner a letter on June 26, 2024, informing him that the initial response to his FOIA request was made in error. Instead of a denial, he should 2 have been informed that no records were responsive to his request. His petition alleged that “probable cause exists to believe that Amy Vedra, FOIA Officer Naperville, Illinois Police Records Department, did knowingly and intentionally deny plaintiff's s FOIA request to access, copy, or examine a public record in violation of 5 ILCS 140, Freedom of Information Act.” He pointed to the denial letters as his basis for the allegations.\r\n\r\n¶ 7\r\nVedra filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code). 735 ILCS 5/2-619(a)(9) (West 2024). The motion admitted Vedra's s denials to Turner's s FOIA requests were made in error. Instead of a denial, the letters should have stated that the City had no records responsive to his requests. Further, the only relief Turner sought was a finding that the City and Vedra knowingly and intentionally denied him access to documents that did not exist. Because the records did not exist, there was no intentional withholding of records.\r\n\r\n¶ 8\r\nThe motion to dismiss included an affidavit signed by Vedra that stated she did not locate any records that were responsive to Turner's s request. Further, even if records existed that were responsive, her experience led her to believe that those records would be sealed and not subject to release. Lawrence also signed an affidavit stating she conducted an independent review after receiving Turner's s petition for judicial review and determined no documents existed that would be responsive to his requests. She sent him a letter stating as such and apologizing for the error in denying his request rather than informing him that no records existed.\r\n\r\n¶ 9\r\nThe circuit court granted Vedra's s motion to dismiss. In addition, it denied Turner's s request for attorney fees. Turner now appeals.\r\n\r\n¶ 10\r\nII. ANALYSIS\r\n\r\n¶ 11\r\nTurner makes two arguments on appeal: (1) that the circuit court improperly dismissed his complaint, and (2) that the court should have awarded him attorney fees. 3\r\n\r\n¶ 12\r\nA. Motion to Dismiss\r\n\r\n¶ 13\r\nTurner first argues that the court erred when it granted Vedra's s motion to dismiss. A motion to dismiss pursuant to section 2-619(a)(9) admits the sufficiency of the complaint but asserts an affirmative matter defeats the claim. 735 ILCS 5/2-619(a)(9) (West 2024). All pleadings, depositions, and affidavits filed may be considered with the motion to dismiss. Simmons v. Campion, 2013 IL App (3d) 120562,\r\n\r\n¶ 22\r\n. Supporting affidavits that have not been challenged by counter-affidavits are admitted. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 262 (2004). On appeal, we review the circuit court's s grant of a section 2-619 motion to dismiss de novo. SK Partners I, LP v. Metro Consultants, Inc., 408 Ill. App. 3d 127, 129 (2011).\r\n\r\n¶ 14\r\nTurner's s complaint stems from an alleged violation under FOIA. The Freedom of Information Act allows for the public inspection and copying of public records that are in the custody of a public body. 5 ILCS 140/3 (West 2024). Any person who is denied access to public records may file a complaint to compel production of such records. Id. § 11(a). As it relates to Vedra's s motion to dismiss, “[t]he nonexistence of requested documents is a cognizable affirmative defense to a complaint grounded in FOIA.” Bocock v. Will County Sheriff, 2018 IL App (3d) 170330,\r\n\r\n¶ 52\r\n.\r\n\r\n¶ 15\r\nHere, Vedra's s affidavit averred that she searched for the records Turner requested and that none existed. Further, through her current work experience and her past employment in the Kendall County circuit clerk's s office, she knew that such records, if they did exist, would be sealed and not releasable under FOIA. Vedra's s affidavit is further corroborated by Lawrence's s affidavit stating she investigated and determined no responsive records existed after receiving Turner's s petition for judicial review. Thus, Vedra's s motion sufficiently alleges a recognized affirmative defense against a FOIA complaint. Id. 4\r\n\r\n¶ 16\r\nWhat Turner neglects to acknowledge and address in his briefs is that he must establish that the records he requested actually exist. Turner's s focus is solely on Vedra's s initial denial, when the focus should be on whether the records exist. His complaint alleges that Vedra intentionally withheld records from him due to her initial denial. He further alleges that her denial was intentional. Nowhere in his complaint, his response to Vedra's s motion to dismiss, or this appeal does he assert that there are records responsive to his request that Vedra refused to turn over to him. His analysis ends with his assertion that Vedra incorrectly issued a denial to his request but ignores the reason why that denial was incorrect. He first raised his belief that records did exist, not in any pleadings, but during argument on the motion to dismiss when he posited only that the erroneous denials prove records responsive to the request existed. That conclusion is not supported by fact. At no point did Turner allege any facts to indicate such records exist, nor did he provide a counter-affidavit to indicate Vedra's s and Lawrence's s affidavits were incorrect. The circuit court had before it two unrebutted affidavits which allowed it to take those affidavits as truth. As such, it correctly determined that no records existed. See Raintree Homes, Inc., 209 Ill. 2d at 262.\r\n\r\n¶ 17\r\nFor Turner to succeed in this matter, he must allege, and later prove, that records exist that are responsive to his request and that the City impermissibly refused to provide those records to him. 5 ILCS 140/11(a) (an individual may file for injunctive relief when a public body denies access to records). One cannot succeed on a claim that a municipality improperly withheld records without establishing that records existed that could be withheld. See id.; Barner v. Fairburn, 2019 IL App (3d) 180742,\r\n\r\n¶ 13\r\n(the circuit court properly granted the public body's s motion to dismiss when it demonstrated that the records plaintiff requested did not exist because no FOIA violation can occur without the existence of records). Both affidavits filed in support of the motion to dismiss 5 establish that no records exist. Turner has not established otherwise. Therefore, his claim must fail, and the circuit court did not err in granting Vedra's s motion to dismiss.\r\n\r\n¶ 18\r\nB. Attorney Fees\r\n\r\n¶ 19\r\nNext, Turner requests attorney fees in this matter and argues that the circuit court erred in not granting them. His argument is meritless for several reasons.\r\n\r\n¶ 20\r\nFirst, Turner proceeded as a self-represented litigant. It is well established, and acknowledged by Turner in his brief, that caselaw supports denying a self-represented litigant attorney fees under these circumstances. See, e.g., Hamer v. Lentz, 132 Ill. 2d 49, 61-63 (1989) (an attorney representing himself is not entitled to attorney fees); Brazas v. Ramsey, 291 Ill. App. 3d 104, 110 (1997) (a self-represented nonlawyer may not be awarded attorney fees under FOIA). However, Turner attempts to use McCarthy v. Taylor, 2019 IL 123622,\r\n\r\n¶ 32\r\n, to support his argument that he may still receive attorney fees. However, McCarthy is clearly distinguishable. First, our supreme court's s holding in McCarthy concerned a very narrow subset of self-represented litigants—those that are attorneys defending themselves in litigation found to be frivolous. Id. (“a court is authorized to impose sanctions in the form of attorney fees *** to compensate an attorney defending himself against a frivolous cause of action.” (Emphasis added)). Turner is not a licensed attorney, nor is he presenting a defense to a frivolous lawsuit.\r\n\r\n¶ 21\r\nMoreover, McCarthy is specific only to sanctions related to Illinois Supreme Court Rule 137. Id.; Ill. S. Ct. R. 137 (eff. Jan. 1, 2018). The goal in imposing sanctions under this rule is to punish the offender. Sundance Homes, Inc. v. County of DuPage, 195 Ill. 2d 257, 285-86 (“The purpose of Rule 137 is to prevent abuse of the judicial process by penalizing claimants who bring vexatious and harassing actions.”). The award of attorney fees in FOIA is not comparable because the purpose of awarding attorney fees under FOIA is not to punish but to ensure enforcement of 6 the Act. Hamer, 132 Ill. 2d at 61-62 (“[T]he purpose of the provision is to ensure enforcement of the FOIA. *** We do not think the provision was intended as either a reward for successful plaintiffs or as a punishment against the government.”). Because the facts, purpose and authority for granting attorney fees for each situation are clearly different, McCarthy cannot be applied here.\r\n\r\n¶ 22\r\nFinally, Turner argues that anyone who pursues a claim can receive attorney fees under FOIA. Once again, Turner's s focus is misplaced. FOIA allows the prevailing party to receive attorney fees. 5 ILCS 140/11(i) (“If a person seeking the right to inspect or receive a copy of a public record prevails in a proceeding under this Section, the court shall award such person reasonable attorney's fees and costs.” (Emphasis added)). A prevailing party in a FOIA action must satisfy the following requirements: (1) he filed a lawsuit against a public entity, (2) the entity produced the records requested, (3) the lawsuit caused the production of records, and (4) the lawsuit was reasonably necessary to obtain those records. Kieken v. City of Joliet, 2023 IL App (3d) 220392,\r\n\r\n¶ 22\r\n. As we have already discussed, records cannot be produced here because none exist; therefore, Turner cannot be considered a prevailing party. Accordingly, we find no error in the circuit court's s decision to deny Turner, a self-represented litigant who did not prevail in the matter, attorney fees.\r\n\r\n¶ 23\r\nIII. CONCLUSION\r\n\r\n¶ 24\r\nThe judgment of the circuit court of Du Page County is affirmed.\r\n\r\n¶ 25\r\nAffirmed. 7"} {"dedup_key":"2025 IL App (4th) 241067-U","dedup_key_type":"neutral_citation","neutral_citation":"2025 IL App (4th) 241067-U","case_name":"Jared M. Staake v. The Sangamon County Sheriff’s Office","court_level":"Appellate","appellate_district":"4th","year":2025,"county":"Sangamon","appellate_docket":"4-24-1067","circuit_docket":"23-MR-220, 23-MR-251","published":0,"authoring_justice":"Steigmann","statute":["FOIA"],"exemptions_cited":["7(1)(e-10)"],"public_body":"Sangamon County Sheriff’s Office","requesting_party":"Jared M. Staake","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court affirmed the dismissal of the plaintiff's FOIA complaints, holding that he failed to establish how the requested recordings were relevant to his claims under section 7(1)(e-10). The court further ruled that the plaintiff was not entitled to civil penalties and declined to apply civil discovery rules to define relevancy under FOIA.","best_text_source":"Court Opinions - FOIA/Staake v. Sangamon County Sheriffs Office 2025 IL App (4th) 241067-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:11:03.829197","site_category":"Police & Investigative Records","date_decided":"2025-10-31","site_url":"/cases/2025%20IL%20App%20(4th)%20241067-U/","text_url":"/case-text/2025%20IL%20App%20(4th)%20241067-U.txt","full_text":" NOTICE 2025 IL App (4th) 241067-U\nThis Order was filed under\n FILED\nSupreme Court Rule 23 and is NOS. 4-24-1067, 4-24-1153 cons. October 31, 2025\nnot precedent except in the Carla Bender\nlimited circumstances allowed 4th District Appellate\nunder Rule 23(e)(1).\n IN THE APPELLATE COURT Court, IL\n OF ILLINOIS\n\n FOURTH DISTRICT\n\n JARED M. STAAKE, ) Appeal from the\n Plaintiff-Appellant, ) Circuit Court of\n v. ) Sangamon County\n THE SANGAMON COUNTY SHERIFF’S OFFICE, ) Nos. 23MR220\n Defendant-Appellee. ) 23MR251\n )\n ) Honorable\n ) Rudolph M. Braud &\n ) Christopher G. Perrin\n ) Judges Presiding.\n\n\n JUSTICE STEIGMANN delivered the judgment of the court.\n Justices DeArmond and Vancil concurred in the judgment.\n\n ORDER\n\n ¶1 Held: The appellate court (1) affirmed the trial court’s summary dismissal of plaintiff’s\n amended complaints, which alleged violations of the Freedom of Information Act\n (FOIA) (5 ILCS 140/1 et seq. (West 2022)), because plaintiff failed to establish\n how the recordings he requested “may be relevant” to his cases or claims (id.\n § 7(1)(e-10)), (2) concluded plaintiff was not entitled to civil penalties and costs,\n and (3) declined to look to the discovery rules to define relevancy for purposes of\n the FOIA.\n\n ¶2 In Sangamon County case Nos. 23-MR-220 and 23-MR-251, plaintiff, Jared M.\n\n Staake, pro se filed amended complaints for injunctive relief and declaratory judgment against\n\n defendant, the Sangamon County Sheriff’s Office (Sheriff’s Office), pursuant to the Freedom of\n\n Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2022)). The amended complaints also\n\n sought civil penalties and costs. In both cases, the parties moved for summary judgment. The\n\n trial court granted summary judgment for the Sheriff’s Office, finding the recordings Staake\n\frequested were exempt from production under the FOIA because Staake failed to establish, as an\n\nexception to the exemption, how the recordings “may be relevant” to two pending cases filed\n\nagainst him and one suit he may file (id. § 7(1)(e-10)).\n\n¶3 Staake appeals, arguing (1) the trial court erred by entering summary judgment in\n\nthe Sheriff’s Office’s favor in both cases because the recordings “may be relevant” to his\n\nexisting and potential cases, (2) he is entitled to civil penalties and costs as a result, and (3) the\n\ndiscovery rules should be used to define what “may be relevant” means for purposes of the\n\nFOIA. We disagree and affirm.\n\n¶4 I. BACKGROUND\n\n¶5 The records on appeal do not contain the recordings Staake requested pursuant to\n\nthe FOIA. Moreover, no reports of proceedings or acceptable substitutes were filed. See Ill. S.\n\nCt. R. 323(a), (c), (d) (eff. July 1, 2017). Accordingly, the information in this background is\n\ntaken solely from the common law records.\n\n¶6 A. Facts Common to Both Cases\n\n¶7 On March 20, 2023, Staake’s wife, Chelsie Bounds, filed a petition for an\n\nemergency order of protection against Staake.\n\n¶8 On March 21, 2023, the couple was charged with criminal offenses unrelated to\n\nthe order of protection.\n\n¶9 On March 22, 2023, the couple was arrested, booked, and detained in the\n\nSangamon County jail. While in jail, Bounds allegedly made statements to others over the jail’s\n\nrecorded phone lines about the order of protection and criminal offenses.\n\n¶ 10 B. Case No. 23-MR-220\n\n¶ 11 1. The Original Complaint and Related Proceedings\n\n\n\n\n -2-\n\f¶ 12 In July 2023, Staake filed a seven-count complaint against the Sheriff’s Office\n\npursuant to the FOIA. In his complaint, Staake alleged that he submitted three separate FOIA\n\nrequests, and he resubmitted the second and third requests multiple times. Staake attached his\n\nFOIA requests and the Sheriff’s Office’s responses to the complaint. Staake’s requests sought,\n\nrelevant to this appeal, the production of communication records between March 22 and 25,\n\n2023, including (1) phone calls Bounds made that the jail recorded and (2) phone numbers\n\nBounds dialed from the jail. In his FOIA requests, Staake alleged the recorded phone calls and\n\nother materials were “ ‘relevant’ to his current or potential case or claim involving Ms. Bounds,”\n\nand in his third request, he specified that they were “relevant to [Staake’s] current and potential\n\ncase and claim involving Chelsie Bounds,” including (1) “Bounds v. Staake, MaCoupin [sic] Co.\n\n#23-OP-79,” (2) “People v. Bounds, Sang. Co. #23-CF-238,” and (3) a “potential” libel, slander,\n\nor defamation suit he may file. Staake explained, “Bounds has spoken about facts regarding\n\n[Staake’s] case and claims over the jail’s recorded phone lines.”\n\n¶ 13 In his complaint, Staake alleged that the Sheriff’s Office improperly denied his\n\nfirst FOIA request when it concluded that the records were exempted from production under,\n\namong other sections, section 7(1)(e-10) of the FOIA (5 ILCS 140/7(1)(e-10) (West 2022)),\n\nwhich, as relevant to this case, prohibited the production of the requested records concerning\n\nBounds unless Staake established, as an exception to the exemption, how the records “may be\n\nrelevant.” Staake did not allege any facts indicating how his cases or claims “may be relevant” to\n\nthe requested materials. Instead, he simply alleged Bounds made statements concerning all these\n\ncases, and, thus, such statements were “inherently relevant.” Regarding the second and third\n\nrequests, which were submitted and resubmitted multiple times, Staake alleged the Sheriff’s\n\nOffice also (1) failed to respond at all to some of the submissions, (2) did not timely respond, and\n\n\n\n\n -3-\n\f(3) denied his requests because Staake failed to use the Sheriff’s Office’s standardized form.\n\nStaake sought disclosure of the records as well as statutory damages.\n\n¶ 14 In August 2023, the Sheriff’s Office moved for partial summary judgment,\n\nasserting, among other things, Staake failed to establish how the recorded telephone calls “may\n\nbe relevant” to his potential and pending cases or claims. (The Sheriff’s Office did not seek\n\nsummary judgment as to the claims it untimely responded and rejected Staake’s requests because\n\nthey were not submitted on the Sheriff’s Office’s standardized form.)\n\n¶ 15 Later in August 2023, Staake filed a motion to have the withheld records turned\n\nover to the trial court for an in camera inspection.\n\n¶ 16 2. The Amended Complaint and Related Proceedings\n\n¶ 17 In October 2023, Staake filed a motion for leave to file a three-count amended\n\ncomplaint. In count I, Staake alleged the Sheriff’s Office misapplied the exception to the FOIA\n\nexemption because Bounds’s recorded phone conversations were “inherently relevant” to\n\nattacking Bounds’s credibility in (1) the order of protection case (Bounds v. Staake, No. 23-OP-\n\n79 (Cir. Ct. Macoupin County)), (2) Staake’s criminal case (People v. Staake, No. 23-CF-237\n\n(Cir. Ct. Sangamon County)), and (3) a potential claim for malicious prosecution, libel, slander,\n\nor defamation that Staake may file. In count II, Staake claimed defendant incorrectly mandated\n\nthat some of Staake’s FOIA requests be submitted on the Sheriff’s Office’s standardized form,\n\nand in count III, Staake asserted the Sheriff’s Office untimely responded to one of Staake’s\n\nFOIA requests.\n\n¶ 18 As with the original complaint, Staake did not allege any facts indicating how his\n\ncases or claims “may be relevant” to the recordings. However, Staake attached to his amended\n\ncomplaint a September 2023 FOIA request, which was submitted after Staake filed his original\n\n\n\n\n -4-\n\fcomplaint. This request sought the same recorded telephone calls and further asserted that those\n\ncalls were relevant to the OP case and defendant’s criminal cases. The request then stated the\n\nfollowing:\n\n “Chelsie Bounds has made new, additional or different statements over the\n\n [Sangamon County jail’s] recorded phone lines that are inconsistent with previous\n\n statements or positions that she has taken in all the above referenced cases. Those\n\n sought telephone records of Chelsie Bounds speaking about those cases or alleged\n\n facts underlying those cases is relevant to [Staake’s] defenses to those cases by\n\n attacking Chelsie Bounds’ credibility.”\n\n¶ 19 In December 2023, the trial court granted the Sheriff’s Office partial summary\n\njudgment on Staake’s original complaint as to all counts except those alleging the Sheriff’s\n\nOffice (1) did not timely respond and (2) denied Staake’s requests because he failed to use the\n\nSheriff’s Office’s standardized form. The court also granted Staake leave to file his amended\n\ncomplaint. Staake’s motion for an in camera inspection remained pending.\n\n¶ 20 In January 2024, the Sheriff’s Office moved for partial summary judgment on\n\nStaake’s amended complaint. Concerning count I, the Sheriff’s Office asserted partial summary\n\njudgment was proper because (1) the trial court had already entered summary judgment on\n\nidentical claims in Staake’s original complaint and (2) Staake failed to establish how the\n\nrecordings “may be relevant” to his cases or claims. Although the September 2023 FOIA request\n\nsought production of the same recordings, the Sheriff’s Office did not seek summary judgment\n\nas to this request. Regarding counts II and III, the Sheriff’s Office argued summary judgment\n\nshould be granted because, although it may have acted improperly in untimely responding and\n\ndirecting Staake to submit his requests on its standardized form, the requests nevertheless would\n\n\n\n\n -5-\n\fhave been denied on the merits.\n\n¶ 21 In February 2024, Staake filed a cross-motion for summary judgment. He claimed\n\nhe established Bounds’s recorded telephone calls “may be relevant” when he asserted Bounds\n\nmade statements about his cases and cited the case numbers.\n\n¶ 22 In April 2024, the trial court granted summary judgment in the Sheriff’s Office’s\n\nfavor as to all counts and claims except the September 2023 FOIA request. In doing so, the court\n\nnoted it would review the recordings to see whether they “may be relevant” as set forth in the\n\nSeptember 2023 request. The court ordered the Sheriff’s Office to provide the recordings to the\n\ncourt for in camera review.\n\n¶ 23 We note that the basis for the trial court’s ruling does not appear in the common\n\nlaw record. Nonetheless, the record demonstrates that the court ordered Staake to submit an\n\namended September 2023 FOIA request, which Staake did in May 2024.\n\n¶ 24 Later in May 2024, the Sheriff’s Office moved for summary judgment on\n\nStaake’s amended September 2023 FOIA request, arguing Staake again failed to establish how\n\nBounds’s recorded phone calls “may be relevant.” In its motion, the Sheriff’s Office asserted that\n\nStaake, in the amended request, identified three potential claims (malicious prosecution,\n\ndefamation, and slander) and two existing cases (Bounds v. Staake, No. 23-OP-79 (Cir. Ct.\n\nMacoupin County), and People v. Staake, No. 23-CF-237 (Cir. Ct. Sangamon County)). The\n\nmotion further asserted that his amended request did not provide any facts indicating how the\n\nrecorded phone calls “may be relevant” to these cases or claims.\n\n¶ 25 In addition, the Sheriff’s Office stated in its motion for summary judgment that it\n\nhad given the trial court the recorded phone calls Staake requested for purposes of an in camera\n\ninspection. The Sheriff’s Office noted it also gave Staake the recordings before any proceedings\n\n\n\n\n -6-\n\fin any of his current or potential cases began, explaining it did so because, among other reasons,\n\nit (1) wanted to conserve the court’s, State’s, and Sheriff’s Office’s resources and (2) believed\n\nStaake already had summaries of the recorded phone calls. (Regarding these summaries, the\n\nrecord contained a field report indicating Bounds called her mother six times on March 23, 2023.\n\nDuring those calls, Bounds told her mother what she was charged with and asked her mother to\n\npost bond and retain an attorney. In one conversation, Bounds told her mother Staake asked her\n\nabout her charges, and she and Staake talked. The officer who prepared the report indicated he\n\n“could not understand what Bounds was telling her mother when she asked about their\n\nconversation.”)\n\n¶ 26 In July 2024, Staake filed a cross-motion for summary judgment, raising the same\n\narguments he raised before.\n\n¶ 27 In August 2024, the trial court granted the Sheriff’s Office summary judgment as\n\nto the amended September 2023 FOIA request, finding Staake failed to establish, as an exception\n\nto the exemption, how his cases or claims may be relevant to the recordings he sought.\n\n¶ 28 C. Case Number 23-MR-251\n\n¶ 29 1. The Original Complaint\n\n¶ 30 In July 2023, Staake filed in case No. 23-MR-251, as he did in case No. 23-MR-\n\n220, a seven-count complaint against the Sheriff’s Office pursuant to the FOIA. In his first FOIA\n\nrequest, dated May 3, 2023, he alleged (1) Joseph Hembrough, a detainee in the Sheriff’s\n\nOffice’s jail, talked to Bounds while she was in jail; (2) Bounds told Hembrough about her and\n\nStaake’s criminal cases; and (3) the Sheriff’s Office recorded the conversations. Staake\n\nrequested, from March 14, 2023, to the date of any response, (1) all outgoing phone calls\n\nHembrough made; (2) all recorded outgoing phone calls Hembrough made; (3) all phone calls\n\n\n\n\n -7-\n\fHembrough made to Bounds at a specified number; (4) all incoming/outgoing messages to/from\n\nHembrough, including, but not limited to, text behind, kiosk, and phone messages; (5) all\n\nincoming/outgoing messages between Bounds and Hembrough, including, but not limited to, text\n\nbehind, kiosk, and phone messages; and (6) all recorded visits between Hembrough and Bounds.\n\n¶ 31 In one of his requests, Staake asserted that because Hembrough and Bounds\n\ntalked about Staake’s cases, the requested records “may be relevant” to the order of protection\n\ncase (Bounds v. Staake, No. 23-OP-79 (Cir. Ct. Macoupin County)), Staake’s criminal case\n\n(People v. Staake, No. 23-CF-237 (Cir. Ct. Sangamon County)), and a potential malicious\n\nprosecution, libel, slander, or defamation suit Staake may file. In his complaint, Staake noted that\n\nthe Sheriff’s Office denied his requests, asserting that the records were exempt from production\n\nunder, among other sections, section 7(1)(e-10) of the FOIA (5 ILCS 140/7(1)(e-10) (West\n\n2022)).\n\n¶ 32 Staake claimed denial of this request was improper because, pursuant to the\n\nexception to the exemption, he established that the records “may be relevant” to his cases or\n\nclaims. Concerning the FOIA requests that Staake submitted and resubmitted thereafter, which\n\ndid not seek any different materials, Staake also alleged the Sheriff’s Office improperly denied\n\nhis FOIA requests when it (1) failed to respond, (2) did not timely respond, or (3) denied his\n\nrequests because Staake failed to use the Sheriff’s Office’s standardized form.\n\n¶ 33 2. The Amended Complaint and Related Proceedings\n\n¶ 34 In December 2023, Staake moved to file an amended three-count complaint. He\n\nalleged Bounds told Hembrough and Seth Frazier, another detainee, that she was drugged, raped,\n\nand taken hostage on the dates alleged in the order of protection and criminal cases. Staake did\n\nnot allege any facts indicating that his cases or claims were relevant to these statements. Instead,\n\n\n\n\n -8-\n\fhe alleged Bounds’s statements to Hembrough were recorded via the jail’s recording system, and\n\nall the statements were “inherently relevant” to his civil and criminal defenses.\n\n¶ 35 As in case No. 23-MR-220, Staake alleged the Sheriff’s Office (1) misapplied the\n\nexception to the FOIA exemption (count I), (2) incorrectly mandated that some of Staake’s FOIA\n\nrequests be submitted on the Sheriff’s Office’s standardized forms (count II), and (3) untimely\n\nresponded to one of Staake’s FOIA requests (count III). Attached to the amended complaint was,\n\namong other things, one page of Bounds’s petition for an order of protection. In it, Bounds\n\nasserted Staake pushed and punched her in February 2023, causing her to seek treatment at a\n\nhospital. Bounds also indicated she witnessed Staake participate in a violent crime on March 15,\n\n2023, and, thereafter, while she was under the influence of drugs and alcohol, Staake sexually\n\nassaulted her.\n\n¶ 36 In February 2024, Staake moved for summary judgment, arguing he established\n\nthe recordings “may be relevant” when he asserted Bounds made statements about his cases and\n\ncited the case numbers.\n\n¶ 37 In April 2024, the Sheriff’s Office filed a cross-motion for summary judgment.\n\nConcerning count I, the Sheriff’s Office asserted summary judgment in its favor was proper\n\nbecause Staake failed to establish how the recordings “may be relevant” to his cases or claims.\n\nRegarding counts II and III, the Sheriff’s Office argued summary judgment should be granted\n\nbecause, although it may have acted improperly in untimely responding or directing Staake to\n\nsubmit his requests on its standardized form, the requests nevertheless would have been denied\n\non the merits.\n\n¶ 38 In July 2024, the trial court granted the Sheriff’s Office’s motion for summary\n\njudgment, finding the recordings Staake requested were exempt from disclosure under the FOIA\n\n\n\n\n -9-\n\fand Staake failed to establish, as an exception to the exemption, how his cases or claims “may be\n\nrelevant” to the requested recordings. The court explained that citing the underlying cases or\n\nclaims and characterizing the requests as relevant did not establish that the recordings “may be\n\nrelevant.”\n\n¶ 39 Staake appeals the grant of summary judgment in the Sheriff’s Office’s favor in\n\nboth cases. We have consolidated the appeals for disposition.\n\n¶ 40 II. ANALYSIS\n\n¶ 41 Staake appeals, arguing (1) the trial court erred by entering summary judgment in\n\nthe Sheriff’s Office’s favor in both cases because the recordings “may be relevant” to his\n\nexisting and potential cases, (2) he is entitled to civil penalties and costs as a result, and (3) the\n\ndiscovery rules should be used to define what “may be relevant” means for purposes of the\n\nFOIA. We disagree and affirm.\n\n¶ 42 At issue on appeal is whether the recordings Staake requested “may be relevant”\n\npursuant to the exception to the exemption under section 7(1)(e-10) of the FOIA (5 ILCS\n\n140/7(1)(e-10) (West 2022)). Staake argues he established the recordings he requested “may be\n\nrelevant” because (1) Bounds is the opposing party in the order of protection case and the\n\ncodefendant in his criminal case; (2) Bounds made statements about these cases; (3) these\n\nstatements, some of which were conflicting, could be used to attack Bounds’s credibility; and\n\n(4) he cited the case numbers for the emergency order of protection case and his criminal case.\n\nMoreover, Staake contends that because the FOIA does not define “may be relevant,” this court\n\nshould look to the discovery rules, which define relevancy in broad terms that would encompass\n\nthe recordings he requested. Finally, Staake asserts that because he should have prevailed,\n\n\n\n\n - 10 -\n\fmeaning he established the recordings “may be relevant” to his cases or claims, he is entitled to\n\ncivil penalties and costs.\n\n¶ 43 We disagree with Staake’s contentions. Because the Sheriff’s Office has not filed\n\nbriefs in these cases, we review this appeal for prima facie reversible error, and, in doing so—in\n\nthe absence of complete records—we conclude Staake has failed to establish (1) the recordings\n\n“may be relevant” to his cases or claims and (2) discovery rules should dictate what “may be\n\nrelevant” means. Given that, Staake is not entitled to civil penalties and costs.\n\n¶ 44 A. The Applicable Law\n\n¶ 45 1. Insufficient Records on Appeal\n\n¶ 46 Staake, as the appellant, “has the burden to present a sufficiently complete record\n\nof the proceedings at trial to support a claim of error.” Foutch v. O’Bryant, 99 Ill. 2d 389, 391\n\n(1984). “[I]n the absence of such a record on appeal, it will be presumed that the order entered by\n\nthe trial court was in conformity with law and had a sufficient factual basis.” Id. at 392. We\n\nresolve any doubts arising from an incomplete record against the appellant. Id.\n\n¶ 47 2. No Appellee’s Briefs\n\n¶ 48 We note that the Sheriff’s Office has not filed a brief in either appeal. In First\n\nCapitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131 (1976), the supreme\n\ncourt held that, when no appellee’s brief has been filed, a reviewing court cannot reverse the trial\n\ncourt’s judgment pro forma. Rather, the reviewing court has three distinct, discretionary options:\n\n “(1) it may serve as an advocate for the appellee and decide the case when the\n\n court determines justice so requires, (2) it may decide the merits of the case if the\n\n record is simple and the issues can be easily decided without the aid of the\n\n appellee’s brief, or (3) it may reverse the trial court when the appellant’s brief\n\n\n\n\n - 11 -\n\f demonstrates prima facie reversible error that is supported by the record.” Thomas\n\n v. Koe, 395 Ill. App. 3d 570, 577 (2009).\n\nSee Talandis Construction Corp., 63 Ill. 2d at 133.\n\n¶ 49 3. Summary Judgment\n\n¶ 50 A grant of summary judgment is appropriate when the pleadings, depositions,\n\nadmissions, and affidavits on file, when viewed in the light most favorable to the nonmoving\n\nparty, show that there is no genuine issue of material fact and that the moving party is clearly\n\nentitled to judgment as a matter of law. Chicago Sun-Times v. Cook County Health & Hospitals\n\nSystems, 2022 IL 127519, ¶ 24. “ ‘When parties file cross-motions for summary judgment, they\n\nmutually agree that there are no genuine issues of material fact and that only a question of law is\n\ninvolved.’ ” Id. (quoting Jones v. Municipal Employees’ Annuity & Benefit Fund of Chicago,\n\n2016 IL 119618, ¶ 26). We review de novo an order granting summary judgment. Id.\n\n¶ 51 4. The FOIA\n\n¶ 52 “The General Assembly has declared FOIA’s underlying public policy to be that\n\n‘all persons are entitled to full and complete information regarding the affairs of government and\n\nthe official acts and policies of those who represent them as public officials and public\n\nemployees consistent with the terms of this Act.’ ” Green v. Chicago Police Department, 2022\n\nIL 127229, ¶ 37 (quoting 5 ILCS 140/1 (West 2018)). Accordingly, all “public records are\n\npresumed to be open and accessible.” Id. ¶ 38.\n\n¶ 53 However, the FOIA also provides that certain documents are exempt from\n\ndisclosure. Relevant to this case, section 7(1)(e-10) of the FOIA provides the following:\n\n “(1) When a request is made to inspect or copy a public record that\n\n contains information that is exempt from disclosure under this Section, but also\n\n\n\n\n - 12 -\n\f contains information that is not exempt from disclosure, the public body may\n\n elect to redact the information that is exempt. The public body shall make the\n\n remaining information available for inspection and copying. Subject to this\n\n requirement, the following shall be exempt from inspection and copying:\n\n ***\n\n (e-10) Law enforcement records of other persons requested by a\n\n person committed to *** a county jail, *** except as these records may be\n\n relevant to the requester’s current or potential case or claim.” (Emphasis\n\n added.) 5 ILCS 140/7(1)(e-10) (West 2022).\n\n¶ 54 Section 11(i) of the FOIA (id. § 11(i)) provides, in relevant part, if the party\n\nrequesting records under the FOIA “prevails in a proceeding under this Section, the court shall\n\naward such person reasonable attorney’s fees and costs.” Under section 11(j) of the FOIA (id.\n\n§ 11(j)), a court may impose civil penalties upon the public body if the public body willfully or\n\nintentionally failed to comply with the FOIA or otherwise acted in bad faith.\n\n¶ 55 B. This Case\n\n¶ 56 1. Impediments to this Appeal\n\n¶ 57 a. Incomplete Records\n\n¶ 58 The records on appeal are insufficient. Absent from the records on appeal are not\n\nonly reports of proceedings or substitutes (see Ill. S. Ct. R. 323(a), (c), (d) (eff. July 1, 2017)),\n\nwhich could shed light on what was said at the hearing on the motions for summary judgment,\n\nbut also missing are the recordings Staake requested. Consequently, in accordance with Foutch,\n\nwe presume that the trial court’s orders finding the recordings were not relevant—namely, that\n\nthe exception to the exemption under section 7(1)(e-10) of the FOIA did not apply—were in\n\n\n\n\n - 13 -\n\fconformity with the law and had a sufficient factual basis. See Bocock v. Will County Sheriff,\n\n2018 IL App (3d) 170330, ¶¶ 43-44 (Foutch applied where an appellant argued that a policy\n\nmanual was exempt from the FOIA but the manual reviewed in camera was not included in the\n\nrecord on appeal).\n\n¶ 59 We observe Staake was given the recordings he requested in case No. 23-MR-220\n\nand could have, if nothing else, sought an agreed statement of facts as to what they contained.\n\nSee Ill. S. Ct. R. 323(d) (eff. July 1, 2017). That said, “[e]ven where a party is not privy to\n\nmaterials reviewed in camera and found to be privileged from discovery, that party can request\n\nthe court to submit those materials under seal for appellate review.” Cascade Builders Corp. v.\n\nRugar, 2021 IL App (1st) 192410, ¶ 28. Staake did neither.\n\n¶ 60 b. No Appellee’s Brief\n\n¶ 61 Under Talandis Construction Corp., we elect not to serve as an advocate for the\n\nSheriff’s Office, and we do not find that the issues raised can be easily decided without briefs\n\nfrom the Sheriff’s Office. However, we will consider whether the trial court’s judgment must be\n\nreversed because Staake’s briefs demonstrate prima facie reversible error. In this context,\n\nprima facie means “at first sight, on the first appearance; on the face of it.” (Internal quotation\n\nmarks omitted.) Talandis Construction Corp., 63 Ill. 2d at 132.\n\n¶ 62 2. The Merits\n\n¶ 63 a. Whether the Recordings “May Be Relevant”\n\n¶ 64 Construing against Staake the doubts the incomplete records create and reviewing\n\nhis briefs for prima facie reversible error, we conclude Staake’s briefs do not establish his cases\n\nor claims “may be relevant” to the recordings he requested. That is, Staake’s briefs do not, on\n\ntheir faces, indicate that it was error for the trial court to grant summary judgment for the\n\n\n\n\n - 14 -\n\fSheriff’s Office because the recordings “may be relevant” to Staake’s cases or claims. In both\n\ncases, Staake (1) cited the case numbers to his order of protection and criminal cases; (2) stated\n\nhe and Bounds were involved in these cases; (3) indicated he might bring a malicious\n\nprosecution, libel, slander, or defamation suit; and (4) then simply asserted that, thus, the\n\nrecordings were relevant. More than this is required to establish the recordings “may be\n\nrelevant.”\n\n¶ 65 The party requesting records under the FOIA bears the burden of proving the\n\nrecords “may be relevant,” i.e., the exception to the exemption. See Donley v. City of Springfield,\n\n2022 IL App (4th) 210378, ¶ 36; but see Illinois Education Ass’n v. Illinois State Board of\n\nEducation, 204 Ill. 2d 456, 464 (2003) (stating the public body seeking to invoke the exemption\n\nmust establish it applies). Staake needed to explain what in the pending or potential cases or\n\nclaims “may be relevant” to the recordings he requested. See Donley, 2022 IL App (4th) 210378,\n\n¶ 36 (the plaintiff, who cited his federal case and asserted it was relevant for purposes of the\n\nexception to the exemption in section 7(1)(e-10) of the FOIA, did not establish the requested\n\nrecords “may be relevant” because he failed to provide information about his federal case from\n\nwhich the defendant could ascertain the relevancy of the requested records). Although Staake\n\nprovided more details than the Donley plaintiff about the recordings he requested in the amended\n\ncomplaint in case No. 23-MR-251, stating Bounds told Hembrough and Frazier she was drugged,\n\nraped, and taken hostage on the dates alleged in the order of protection and criminal cases, he\n\nnever explained why his cases or claims were relevant to these statements. Id. That failure is fatal\n\nhere.\n\n¶ 66 b. Whether the Discovery Rules Should Define Relevancy\n\n\n\n\n - 15 -\n\f¶ 67 We choose not to look to the discovery rules to define relevancy for the purposes\n\nof what the phrase “may be relevant” means under the FOIA. Donley has defined what is\n\nnecessary in order to assess what “may be relevant,” a threshold Staake has not met. That aside,\n\nnot only is consideration of the issue hampered without briefs from the Sheriff’s Office and\n\ncomplete records, but “discovery rules can only be applied under the FOIA by way of rough\n\nanalogies.” (Internal quotation marks omitted.) In re Marriage of Daniels, 240 Ill. App. 3d 314,\n\n326 n.1 (1992). Thus, we conclude, for purposes of this case, that what is relevant for discovery\n\npurposes is not necessarily relevant for purposes of the FOIA.\n\n¶ 68 In sum, we conclude the incomplete records and the lack of briefs from the\n\nSheriff’s Office make review of the merits of this appeal difficult. Because Staake has not\n\nestablished prima facie reversible error in that his cases or claims “may be relevant” to the\n\nrecordings he requested, we cannot reverse the trial court. Moreover, given the circumstances of\n\nthis case, we reject any suggestion that we should look to the discovery rules to define what\n\n“may be relevant” means for purposes of the FOIA.\n\n¶ 69 Because Staake has not prevailed on his claim that the requested recordings were\n\nimproperly withheld from him, he is not entitled to civil penalties and costs. See Garlick v.\n\nBloomingdale Township, 2018 IL App (2d) 171013, ¶ 40.\n\n¶ 70 III. CONCLUSION\n\n¶ 71 For the reasons stated, we affirm the trial court’s judgment.\n\n¶ 72 Affirmed.\n\n\n\n\n - 16 -\n\f"} {"dedup_key":"2025 IL App (5th) 240307-U","dedup_key_type":"neutral_citation","neutral_citation":"2025 IL App (5th) 240307-U","case_name":"Zillow, Inc. v. Moultrie County and Moultrie County Assessment Office","court_level":"Appellate","appellate_district":"5th","year":2025,"county":"Moultrie","appellate_docket":"5-24-0307","circuit_docket":"21-MR-37","published":0,"authoring_justice":"Cates","statute":["FOIA"],"exemptions_cited":[],"public_body":"Moultrie County and Moultrie County Assessment Office","requesting_party":"Zillow, Inc.","disposition":"dismissed","relevance":"relevant","summary_source":"syllabus","summary":"The appellate court dismissed the appeal for lack of jurisdiction, holding that the trial court abused its discretion in finding no just reason to delay the appeal under Illinois Supreme Court Rule 304(a). The court determined that appellate review of the FOIA production order was premature because related issues regarding civil penalties and attorney fees remained pending in the trial court.","best_text_source":"Court Opinions - FOIA/Zillow, Inc. v. Moultrie County, 2025 IL App (5th) 240307-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:11:03.829890","site_category":"FOIA Response Process","date_decided":"2025-01-09","site_url":"/cases/2025%20IL%20App%20(5th)%20240307-U/","text_url":"/case-text/2025%20IL%20App%20(5th)%20240307-U.txt","full_text":" NOTICE\n 2025 IL App (5th) 240307-U\n NOTICE\n Decision filed 01/09/25. The\n This order was filed under\n text of this decision may be NO. 5-24-0307 Supreme Court Rule 23 and is\n changed or corrected prior to\n not precedent except in the\n the filing of a Petition for IN THE limited circumstances allowed\n Rehearing or the disposition of\n under Rule 23(e)(1).\n the same.\n APPELLATE COURT OF ILLINOIS\n\n FIFTH DISTRICT\n______________________________________________________________________________\n\nZILLOW, INC., ) Appeal from the\n ) Circuit Court of\n Plaintiff-Appellee, ) Moultrie County.\n )\nv. ) No. 21-MR-37\n )\nMOULTRIE COUNTY and MOULTRIE COUNTY )\nASSESSMENT OFFICE, ) Honorable\n ) Dana Rhoades,\n Defendants-Appellants. ) Judge, presiding.\n______________________________________________________________________________\n\n JUSTICE CATES delivered the judgment of the court.\n Justices Barberis and Boie concurred in the judgment.\n\n ORDER\n\n¶1 Held: The trial court abused its discretion in finding that there was no just reason to delay\n an appeal under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), and the\n appeal is dismissed for lack of jurisdiction.\n\n¶2 The defendants, Moultrie County and Moultrie County Assessment Office, filed this appeal\n\npursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). On appeal, the defendants\n\nchallenge the trial court’s order directing them to produce certain public records that they failed to\n\nprovide in response to a request made by the plaintiff, Zillow, Inc., under the Illinois Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/1 et seq. (West 2020)), and its decision to award statutory\n\nattorney fees to the plaintiff in an amount to be determined. For the reasons that follow, the appeal\n\nis dismissed.\n\n\n 1\n\f¶3 I. BACKGROUND\n\n¶4 On October 14, 2021, the plaintiff, Zillow, Inc., filed a complaint in the circuit court of\n\nMoultrie County, alleging the defendants violated the FOIA in that they failed to provide a\n\ncomplete copy of the county’s 2020 assessment files in compliance with the plaintiff’s record\n\nrequests. In the prayer for relief, the plaintiff sought an order (a) finding that the defendants failed\n\nto comply with the FOIA by denying its request for records, (b) compelling production of the\n\nrequested records, (c) enjoining the defendants from charging a fee beyond the statutory cap\n\nprovided in section 6(a) of the FOIA (5 ILCS 140/6(a) (West 2020)), and (d) awarding attorney\n\nfees, costs, and civil penalties pursuant to section 11 of the FOIA (5 ILCS 140/11 (West 2020)).\n\n¶5 Vanguard Appraisals, Inc., an entity that contracted with the defendants to publish Moultrie\n\nCounty’s assessment and appraisal data on the internet, filed a petition to intervene in the case to\n\nprotect its proprietary interests in software from being disclosed. The trial court granted the petition\n\nand permitted Vanguard Appraisals to intervene in the proceedings.\n\n¶6 The parties participated in a two-day bench trial that began on June 27, 2023. At the close\n\nof the evidence, the trial court permitted the parties to file written closing statements and took the\n\nmatter under advisement. In an order entered October 19, 2023, the trial court found that the\n\nrequested records were public records as defined in the FOIA, that the defendants did not produce\n\nall requested records, that the defendants did not cite any exemption that would have excepted the\n\nrequested records from disclosure under the FOIA, and that the plaintiff proved the merits of its\n\nclaim. The court enjoined the defendants from withholding the requested records and ordered them\n\nto produce those records pursuant to section 11(d) of the FOIA (5 ILCS 140/11(d) (West 2020)).\n\nThe court also awarded reasonable attorney fees to the plaintiff pursuant to section 11(i) of the\n\nFOIA (5 ILCS 140/11(i) (West 2020)). The court deferred a decision on the amount of the fee\n\n\n 2\n\faward and granted the plaintiff leave to supplement its previously filed petition for fees within 30\n\ndays of the order. The court also withheld a decision on the plaintiff’s request for civil penalties\n\nunder section 11(j) of the FOIA (5 ILCS 140/11(j) (West 2020)). The defendants were granted\n\nleave to submit, within 30 days of the court’s order, verified information regarding whether the\n\ndefendants had been assessed penalties for prior FOIA violations and relevant information related\n\nto Moultrie County’s overall budget. In its order, the court also denied the relief requested by\n\nVanguard Appraisals. The court found that Vanguard Appraisals failed to establish that the\n\nrequested records included proprietary information that was exempt from disclosure under the\n\nFOIA.\n\n¶7 On November 17, 2023, the plaintiff filed a supplemental petition for attorney fees.\n\nTherein, the plaintiff requested an award of $48,324.42 in attorney fees and costs, and a civil\n\npenalty of $5,000 for the defendants’ willful noncompliance with the FOIA. The plaintiff attached\n\na report that itemized the hourly rates, the hours worked, and the work performed by its attorneys,\n\nand affidavits from its two experts on the matter of reasonable attorney fees in support of the\n\nsupplemental petition. The defendants did not file a response or objection to the plaintiff’s\n\nsupplemental petition.\n\n¶8 On November 28, 2023, the defendants filed a response to the order entered on October\n\n19, 2023. Therein, the defendants argued that information regarding the Moultrie County budget\n\nand whether Moultrie County had been assessed penalties for prior FOIA violations should have\n\nbeen presented by the plaintiff during trial. The defendants declined to provide the information\n\nrequested in the October 19, 2023, order and they asked the trial court to enter a final and\n\nappealable order.\n\n\n\n\n 3\n\f¶9 The trial court held status conferences on January 3, 2024, and January 26, 2024. Docket\n\nentries from those dates indicate that the parties discussed an appeal of the order entered October\n\n19, 2023, but there are no transcripts or bystanders’ reports recounting those discussions in the\n\nrecord on appeal. The docket entry, dated January 26, 2024, contained the following notation:\n\n “Discussion with the court and counsel regarding the need for a Supreme Court Rule 304(a)\n\n finding. On court’s motion, pursuant to Supreme Court Rule 304(a) this court finds that\n\n there is no just reason for delaying either enforcement or appeal or both, of this court’s\n\n order entered in the Written Memorandum Order dated October 19, 2023.”\n\nOn February 26, 2024, the defendants filed their notice of appeal pursuant to Illinois Supreme\n\nCourt Rule 304(a) (eff. Mar. 8, 2016). 1\n\n¶ 10 II. ANALYSIS\n\n¶ 11 Before considering the merits of an appeal, the appellate court has an independent duty to\n\nassess its jurisdiction and to dismiss the appeal if jurisdiction is lacking. Secura Insurance Co. v.\n\nIllinois Farmers Insurance Co., 232 Ill. 2d 209, 213 (2009); People v. Smith, 228 Ill. 2d 95, 106\n\n(2008). Generally, the appellate court’s jurisdiction is limited to a review of final judgments, absent\n\na statutory exception or a supreme court rule. In re Marriage of Verdung, 126 Ill. 2d 542, 553\n\n(1989). This appeal was filed pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).\n\nRule 304(a) provides, in pertinent part,\n\n “If multiple parties or multiple claims for relief are involved in an action, an appeal may\n\n be taken from a final judgment as to one or more but fewer than all of the parties or claims\n\n only if the trial court has made an express written finding that there is no just reason for\n\n delaying either enforcement or appeal or both.” Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016).\n\n\n\n 1\n Vanguard Appraisals did not file an entry of appearance or otherwise participate in this appeal.\n 4\n\f¶ 12 By its terms, Rule 304(a) applies only to final judgments or final orders. Blumenthal v.\n\nBrewer, 2016 IL 118781, ¶ 24. If an order is not final, the inclusion of a Rule 304(a) finding cannot\n\nconfer appellate jurisdiction. 2 Blumenthal, 2016 IL 118781, ¶ 24; In re Estate of Stark, 374 Ill.\n\nApp. 3d 516, 522 (2007). The rule was intended “to discourage piecemeal appeals in the absence\n\nof a just reason and to remove the uncertainty which existed when a final judgment was entered\n\non fewer than all of the matters in controversy.” (Internal quotation marks omitted.) Blumenthal,\n\n2016 IL 118781, ¶ 23; Marsh v. Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 465\n\n(1990).\n\n¶ 13 In determining whether appellate jurisdiction lies under Rule 304(a), Illinois courts\n\nconsider (a) whether the order at issue is final, and (b) whether there is any just reason to delay an\n\nappeal of that order. Estate of Stark, 374 Ill. App. 3d at 522-23. An order is considered final and\n\nappealable for purposes of Rule 304(a) if it terminates the litigation between the parties on the\n\nmerits or disposes of the rights of the parties, either on the entire controversy or a separate and\n\ndefinite part thereof. Blumenthal, 2016 IL 118781, ¶ 24; Davis v. Loftus, 334 Ill. App. 3d 761, 766\n\n(2002). Generally, when an order only disposes of certain issues relating to the same basic claim,\n\nthe order is not subject to review under Rule 304(a). See, e.g., American Advisors Group v.\n\nWilliams, 2022 IL App (1st) 210734, ¶ 11; Estate of Stark, 374 Ill. App. 3d at 522-23.\n\n¶ 14 In assessing whether there is any just reason for delaying the appeal, the trial court may\n\nconsider the following factors:\n\n “(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility\n\n that the need for review might or might not be mooted by future developments in the [trial]\n\n\n\n The Committee Comments to Rule 304(a) advise that “it is not the court’s finding that makes the\n 2\n\njudgment final, but it is the court’s finding that makes this kind of a final judgment appealable.” Ill. S. Ct.\nR. 304(a), Committee Comments (rev. Sept. 1988).\n 5\n\f court; (3) the possibility that the reviewing court might be obliged to consider the same\n\n issue a second time; (4) the presence or absence of a claim or counterclaim which could\n\n result in a set-off against the judgment sought to be made [appealable]; [and]\n\n (5) miscellaneous factors such as delay, economic and solvency considerations, shortening\n\n the time of trial, frivolity of competing claims, expense, and the like.” (Internal quotation\n\n marks omitted.) AT&T v. Lyons & Pinner Electric Co., 2014 IL App (2d) 130577, ¶ 22.\n\nNot every factor is relevant in every case. Lyons & Pinner Electric Co., 2014 IL App (2d) 130577,\n\n¶ 22. The trial court’s decision to grant a finding under Rule 304(a) is reviewed for an abuse of\n\ndiscretion. See American Advisors Group, 2022 IL App (1st) 210734, ¶ 10; Lyons & Pinner\n\nElectric Co., 2014 IL App (2d) 130577, ¶ 24.\n\n¶ 15 In this case, neither party raised the issue of appellate jurisdiction in their respective briefs.\n\nAfter reviewing the record, we determined that a potential question existed regarding our\n\njurisdiction under Rule 304(a). Following oral arguments, we granted both parties leave to brief\n\nthat issue. In a supplemental brief, the plaintiff acknowledged that the October 19, 2023, order was\n\nnot final when entered because the order disposed of the plaintiff’s underlying FOIA claim but left\n\nopen questions regarding the amount to be awarded in attorney fees as well as the propriety of a\n\ncivil penalty. The plaintiff argued that the order became appealable when the trial court made a\n\nRule 304(a) finding. The plaintiff did not address the propriety of the trial court’s finding that there\n\nwas no just reason to delay enforcement or appeal or both. The defendants did not file a\n\nsupplemental brief. We note, however, that the following appears in the jurisdictional statement in\n\nthe defendants’ brief: “This appeal is from the October 19, 2023, non-final order of the Circuit\n\nCourt of Moultrie Country adjudicating the trial.” (Emphasis added.) The defendants went on to\n\nstate that the circuit court granted leave to appeal pursuant to Rule 304(a), and then, in conclusory\n\n\n 6\n\ffashion, stated that this court had jurisdiction pursuant to Rule 304(a). Contrary to the parties’\n\nsuggestions, the trial court’s Rule 304(a) finding did not confer appellate jurisdiction unless the\n\nOctober 19, 2023, order was a final order that disposed of a separate or definitive part of the\n\ncontroversy between them, and there was no just reason to delay an appeal of that order. Here,\n\nhowever, we need not determine whether the order was final. After reviewing the record, we have\n\ndetermined that there are just reasons for delaying the appeal, and that therefore, the trial court\n\nabused its discretion in entering a Rule 304(a) finding.\n\n¶ 16 The record reveals that the trial court’s October 19, 2023, order disposed of only a portion\n\nof the relief requested under section 11 of the FOIA. The trial court determined that the defendants’\n\nfailure to produce certain assessment records was a FOIA violation, and the court directed the\n\ndefendants to provide those records to the plaintiff. The court also determined that the plaintiff\n\nwould be awarded attorney fees as mandated by the statute. The court deferred decisions on the\n\namount of the attorney fees to be awarded and the propriety of a civil penalty and granted the\n\nparties 30 days to submit additional information on those matters. Based upon the record, it appears\n\nthat the trial court contemplated an expedited resolution on the remaining remedies, and then, for\n\nreasons that are not included in the record, made a Rule 304(a) on its own motion. An expedited\n\nresolution of the remaining remedies would have been in keeping with section 11(h) of the FOIA,\n\nwhich provides, “Except as to causes the court considers to be of greater importance, proceedings\n\narising under this Section shall take precedence on the docket over all other causes and be assigned\n\nfor hearing and trial at the earliest practicable date and expedited in every way.” 5 ILCS 140/11(h)\n\n(West 2020). Additionally, it is relatively clear that there is an overlapping relationship between\n\nthe remedies granted and the remedies reserved for decision, and that those remedies share\n\ncommon issues of fact and law. Thus, there is a possibility of a second appeal in which this court\n\n\n 7\n\fwould be required to review the same set of operative facts as those present herein. Moreover,\n\naddressing the merits of an appeal from the October 19, 2023, order might require this court to\n\naddress factual matters that are still at issue in the trial court regarding the propriety of civil\n\npenalties and the amount of the attorney fees to be awarded. Consequently, we find that appellate\n\nreview of the October 19, 2023, order would be premature and that it would further delay a decision\n\non the remaining remedies, waste judicial resources, and create additional expenses for the parties.\n\n¶ 17 III. CONCLUSION\n\n¶ 18 Rule 304(a) does not allow a trial court to confer appellate jurisdiction by simply\n\nemploying the Rule 304(a) language that there is no just reason to delay enforcement or appeal.\n\nAfter reviewing the record, we conclude that the trial court abused its discretion in finding that\n\nthere was no just reason to delay the appeal of the order entered on October 19, 2023. Accordingly,\n\nthe appeal is dismissed for lack of proper appellate jurisdiction under Rule 304(a).\n\n¶ 19 Appeal dismissed.\n\n\n\n\n 8\n\f"} {"dedup_key":"2026 IL App (1st) 232227","dedup_key_type":"neutral_citation","neutral_citation":"2026 IL App (1st) 232227","case_name":"Balzer v. Northeast Illinois Regional Commuter Railroad Corporation","court_level":"Appellate","appellate_district":"1st","year":2026,"county":"Cook","appellate_docket":"1-23-2227","circuit_docket":"19-CH-10061","published":1,"authoring_justice":"Ellis","statute":["FOIA"],"exemptions_cited":[],"public_body":"Northeast Illinois Regional Commuter Railroad Corporation (Metra)","requesting_party":"Jim Balzer","disposition":"reversed_and_remanded","relevance":"relevant","summary_source":"generated","summary":"The court held that a FOIA request is considered 'received' when it arrives at the public body's server, regardless of whether a third-party security filter holds the email in a queue. Because Metra failed to respond within the statutory five-business-day period from the date of receipt, the court ruled that Metra forfeited its arguments against compliance and the plaintiff was entitled to attorney fees as the prevailing party.","best_text_source":"Court Opinions - FOIA/Balzer v. Northeast IL Commuter Railroad 2026 IL App (1st) 232227.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:11:04.234525","site_category":"FOIA Response Process","date_decided":"2026-01-27","site_url":"/cases/2026%20IL%20App%20(1st)%20232227/","text_url":"/case-text/2026%20IL%20App%20(1st)%20232227.txt","full_text":" Digitally signed by\n Illinois Supreme\n Court - Reporter of\n Decisions\n Reason: I attest to\n Illinois Official Reports the accuracy and\n integrity of this\n document\n Appellate Court Date: 2026.06.05\n 12:06:32 -05'00'\n\n\n\n Balzer v. Northeast Illinois Regional Commuter R.R. Corp.,\n 2026 IL App (1st) 232227\n\n\n\nAppellate Court JIM BALZER, Plaintiff-Appellant, v. NORTHEAST ILLINOIS\nCaption REGIONAL COMMUTER RAILROAD CORPORATION, d/b/a\n Metra, Defendant-Appellee.\n\n\n\nDistrict & No. First District, Second Division\n No. 1-23-2227\n\n\n\nFiled January 27, 2026\n\n\n\nDecision Under Appeal from the Circuit Court of Cook County, No. 19-CH-10061; the\nReview Hon. Caroline K. Moreland, Judge, presiding.\n\n\n\nJudgment Reversed and remanded.\n\n\nCounsel on Adam Goodman, of Goodman Tovrov Hardy & Johnson LLC, of\nAppeal Chicago, for appellant.\n\n A. Jay Koehler, T. Allon Renfro, and Robert E. Elworth, of Swanson,\n Martin & Bell, LLP, of Chicago, for appellee.\n\n\n\nPanel JUSTICE ELLIS delivered the judgment of the court, with opinion.\n Presiding Justice Van Tine and Justice D.B. Walker concurred in the\n judgment and opinion.\n\f OPINION\n\n¶1 When does one “receive” an e-mail? That is the question at the heart of this Freedom of\n Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2018)) case. On July 31, 2019, plaintiff\n Jim Balzer sent a FOIA request to the Northeast Illinois Commuter Railroad Corporation, more\n commonly known as Metra, seeking a smorgasbord of records about Metra’s battery recycling\n contracts. But that e-mail did not make it to Metra’s FOIA officer right away; the agency’s\n third-party e-mail software service, Mimecast, stopped it and held it in a security queue,\n thinking it might be suspicious. The day after Balzer sent the e-mail, August 1, Metra’s FOIA\n officer released it from Mimecast’s security queue and acknowledged receipt.\n¶2 The FOIA requires Metra to respond to Balzer’s request within five business days. Metra\n formally denied Balzer’s request on August 8, the sixth business day after Balzer sent his\n request, but only the fifth business day after Metra’s FOIA officer became aware of it. Was\n Metra’s response timely?\n¶3 Our answer is no. We hold that Metra received the e-mail on July 31, the day Balzer sent\n it and Metra’s third-party software received and quarantined it. As such, Metra’s response to\n Balzer on August 8, six business days later, was untimely. We reverse and remand for further\n proceedings.\n\n¶4 BACKGROUND\n¶5 On Wednesday, July 31, 2019, at 11:49 a.m., Jim Balzer sent an e-mail from his private e-\n mail account to a Metra e-mail account designated for FOIA requests. In that e-mail, Balzer\n requested “Copies of all records, documents, reports, forms, writings, letters, memos, books,\n papers, photos, microfilms, interoffice memos, cards, tapes, recordings, electronic data\n processing records, electronic communications, record information from January 1, 2016\n through and including July 31, 2019 for IFB 37567 (battery recycling contract for Metra) ***.”\n¶6 Unbeknownst to Balzer, at least at that moment, that message did not reach Metra’s FOIA\n officers right away. Metra’s third-party e-mail security screening software, Mimecast,\n apparently flagged the e-mail as suspicious. So instead of forwarding it on to the FOIA account,\n Mimecast held it in a security queue for the remainder of that day.\n¶7 At 8:14 a.m. the next day, Thursday, August 1, Mimecast automatically sent Metra’s FOIA\n account a message saying that Balzer’s e-mail was being held in that queue. One of Metra’s\n FOIA officers released the message from Mimecast a minute later, at 8:15 a.m.; Angela Ollie,\n a paralegal and one of Metra’s FOIA officers, e-mailed Balzer back and acknowledged receipt\n of his request at 8:27 a.m. that same day.\n¶8 A little less than an hour later, at 9:18 a.m., Metra sent its first substantive e-mail response\n to Balzer, though it is irrelevant to our appeal. In that first e-mail, Metra told Balzer that it\n assumed he was making his request for a commercial purpose, which would entitle Metra to a\n larger 21-day response time. See id. § 3.1. It was not the only time Metra so claimed during\n this e-mail chain, but each time Balzer objected and denied that he was making his request for\n a commercial purpose. As Metra has not pursued this point on appeal and abandoned it below\n as well, we will not dwell on it.\n\n\n\n\n -2-\n\f¶9 The remainder of the e-mail exchanges on August 1 are highly relevant and outlined in\n detail below.\n\n¶ 10 I. E-Mail Exchanges on August 1\n¶ 11 At 9:35 a.m. on August 1, Metra wrote to Balzer:\n “Your recent FOIA Request *** is categorical in nature and rather broad. It would\n be unduly burdensome to fulfill such a Request. Examples of documents that we may\n be able to provide you with include: contracts, bid tabulation sheets, purchase orders,\n etc. Will you please narrow your Request? Please bear in mind, you can submit future\n requests for additional documents at your leisure.”\n¶ 12 At 9:50 a.m., Balzer replied. Beyond denying that his request was for a commercial\n purpose, Balzer wrote: “I *** therefore anticipate Metra’s strict compliance with FOIA\n Statute.”\n¶ 13 At 9:53 a.m., Metra wrote back: “Thank you for your reply. We will make note that you\n did not submit this Request for Commercial purposes. As such, we will either extend or\n respond to your above-named Request in accordance with FOIA. However, and per our recent\n e-mail to you, will you please narrow your Request?”\n¶ 14 At 9:55 a.m., Balzer replied: “Not necessary to narrow FOIA request for information.\n Either you possess it or not.” Then at 10:03 a.m.: “There is either ‘do’ or ‘do not.’ It is not\n necessary to narrow the request.”\n¶ 15 At 10:18 a.m., Metra replied:\n “I assure you, Metra is willing to provide you with responsive records / information\n in its possession in accordance with the [FOIA]. However, your Request is categorical\n and broad; there is a voluminous amount of information that may be responsive to your\n Request as it is currently written. To ask for, for example, all writings or all papers\n would require, on our part, a lengthy search of our various departments for anything\n written on paper, which may or may not be responsive to your Request. This\n voluminous search does not include the redaction and review process that is also part\n of our preparation of your Response. In light of same, I am willing to discuss what can\n be done to make your Request more manageable so that we may respond expeditiously.\n Will you please narrow your Request. Again, please bear in mind, you can submit future\n requests for any additional documents at your leisure.”\n¶ 16 At 10:41 a.m., Balzer replied: “Gee, Sorry, No.”\n¶ 17 At 3:06 p.m., in addition to additional discussion concerning whether Balzer was seeking\n the information for a commercial purpose, Metra wrote back:\n “Additionally, I would like to reiterate that Metra looks forward to providing you\n with any records in our possession which are responsive to your Request. To comply\n with your Request as it is currently written would be unduly burdensome, and the\n burden to comply with this Request outweighs the publics’ [sic] interest in the\n information. Asking you to narrow your Request is an attempt to make locating,\n redacting, and reviewing any responsive records manageable so that we may comply\n with your Request and provide you with responsive records. Will you please narrow\n your Request? If you have any questions or concerns in this regard, please let us know;\n we look forward to working with you.” (Emphasis added.)\n\n -3-\n\f¶ 18 At 3:44 p.m., after discussion about the “commercial purpose” issue, Balzer wrote:\n “I expect Metra to comply within statutory guidelines and timelines to my non-\n commercial FOIA request. Meanwhile, kindly stop wasting time composing dithering\n e-mails, and instead direct your attention to performing your job, here fulfilling my\n properly filed FOIA request.”\n¶ 19 That was the last e-mail exchange between Balzer and Metra’s FOIA department on August\n 1.\n¶ 20 Between the dates of Thursday, August 1, through and including Wednesday, August 7, no\n communication took place between Metra and Balzer.\n\n¶ 21 II. August 8 Denial\n¶ 22 On Thursday, August 8, Metra sent Balzer an e-mail formally denying his request as unduly\n burdensome under section 3(g) of the FOIA. See 5 ILCS 140/3(g) (West 2018). Metra told\n Balzer that his request was broad and voluminous and would be disruptive to the day-to-day\n operations of the various departments that would have to locate and review records. Since\n Balzer repeatedly refused to narrow his request, the agency was denying it.\n¶ 23 The denial letter identified the attorney and the FOIA officer (Ollie) involved in the matter\n on Metra’s behalf. The denial letter also informed Balzer of his right to challenge the agency\n denial, either via the Attorney General’s “Public Access Counselor” (PAC) for certain\n decisions or by seeking injunctive and declaratory relief in court. See id. § 9.5 (providing for\n appeals of certain decisions to PAC); id. § 11 (permitting suits for injunctive or declaratory\n relief against agency).\n\n¶ 24 III. Circuit Court Proceedings\n¶ 25 Balzer chose the latter option. He filed suit against Metra in circuit court. In his complaint\n seeking declaratory judgment and injunctive relief, Balzer claimed that Metra had not timely\n denied his FOIA request; it denied his request on the sixth day after receiving it, not the fifth.\n He asked for the documents in his original FOIA request, attorney fees and costs, and a civil\n penalty against Metra.\n¶ 26 This unusually lengthy and contentious litigation featured (among other things) motions\n filed by Balzer for substitution of judge for cause and even challenging the authority of the\n judge who ruled on the motion for substitution of judge, as well as multiple motions for\n sanctions Balzer filed. Ultimately, the parties agreed to a narrower scope of records. In June\n 2021, Metra turned over a series of documents pertaining to the battery recycling contract.\n¶ 27 Six months later, Balzer moved for summary judgment, arguing that he was the prevailing\n party and thus entitled to his attorney fees. See id. § 11(i) (permitting attorney fees to prevailing\n party). He also sought a civil penalty against Metra. See id. § 11(j) (permitting civil penalty\n against agency for intentional noncompliance with FOIA or acting in bad faith).\n¶ 28 Balzer argued that Metra received his FOIA request on July 31, 2019, when the Mimecast\n service flagged his e-mail as suspicious and put it into the security queue. Thus, in his view,\n when Metra denied his request on August 8, six business days later, that denial was untimely.\n¶ 29 Metra cross-moved for summary judgment, arguing that it timely denied Balzer’s FOIA\n request and that his request was unduly burdensome and thus exempt from disclosure under\n\n\n -4-\n\f section 3(g) of FOIA. See id. § 3(g). Metra provided affidavits to support its position that\n Balzer’s request was unduly burdensome. Most notable was that of the FOIA officer, Ollie.\n¶ 30 Ollie swore that her initial search yielded hundreds of pages of documents in procurement\n files related to various recycling and scrap metal agencies, spreadsheets with purchase order\n releases and invoice amounts, and various contractual documents. She also found various\n invoices tied to the recycling contracts. Many were paper records that would have to be\n requested from storage, while others were saved in Metra’s contracting software and would\n require individual downloading. She determined it would take weeks to find, review, and\n redact the relevant documents. And then there were e-mails, of which a preliminary search\n netted more than 100,000 that might be relevant. She determined that searching through them\n and redacting any exceptions could take months and severely interfere with the agency.\n¶ 31 The circuit court granted summary judgment to Metra and denied Balzer’s motion. The\n court first concluded that the five-business-day mandate for an agency to respond to a FOIA\n request begins when the agency actually receives and acknowledges the request, which\n happened here on August 1, after the FOIA officer released Balzer’s e-mail from the Mimecast\n security queue. When Metra formally denied it five business days later, on August 8, 2019, it\n did so on the fifth business day, a timely denial.\n¶ 32 The circuit court also agreed with Metra that Balzer’s original request was unduly\n burdensome, as he requested a broad range of documents and files. The court noted Metra’s\n repeated attempts to narrow the scope of his request. Balzer now appeals.\n\n¶ 33 ANALYSIS\n¶ 34 This case comes to us on cross-motions for summary judgment. Summary judgment is\n appropriate when there is no genuine issue of material fact and the moving party is entitled to\n judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2024). When the parties cross-move\n for summary judgment, they concede the absence of a genuine issue of material fact.\n Nationwide Financial, LP v. Pobuda, 2014 IL 116717, ¶ 24. We are not bound by their\n concession, but here we agree that no disputed issues of material fact exist. Id.\n¶ 35 We thus apply de novo review to questions of law. Corbett v. County of Lake, 2017 IL\n 121536, ¶ 18. We may affirm on any basis in the record, regardless of whether the circuit court\n relied on that ground. Village of Bartonville v. Lopez, 2017 IL 120643, ¶ 34.\n¶ 36 This appeal involves an interpretation of the FOIA. Our goal is to divine legislative intent,\n best expressed by the legislation’s plain language. Land v. Board of Education of Chicago, 202\n Ill. 2d 414, 421-22 (2002). We read a statutory scheme as a whole, interpreting words not in\n isolation but with regard to other provisions. Corbett, 2017 IL 121536, ¶ 27. We strive for an\n interpretation that does not produce absurd or illogical results and is compatible with the\n overall intent and purpose of the legislation. See id.\n\n¶ 37 I\n¶ 38 Before diving into specifics, we lay some foundation. Citizens generally have the right to\n obtain public records from a public body like Metra. 5 ILCS 140/3(a) (West 2018). Requests\n must be in writing and may be submitted, among other ways, by e-mail. Id. § 3(c). As noted,\n the FOIA provides that “[e]ach public body shall *** either comply with or deny a request for\n\n\n\n -5-\n\f public records within 5 business days after its receipt of the request, unless the time for\n response is properly extended under subsection (e) of this Section.” Id. § 3(d).\n¶ 39 There are four possible responses a public body may provide within those five days:\n (1) comply with the request, (2) deny the request, (3) extend the time to respond, or (4) fail to\n do any of the first three things. Id. We will take these options out of order. And we can skip\n the first one, for if the public body complies with the request, everyone goes home happy; the\n courts never get involved.\n¶ 40 The public body may extend the five-day deadline on certain enumerated grounds or by\n agreement. Id. § 3(e). For certain specified reasons (such as the need to consult with other\n public bodies or other departments within its own agency), the public body may assert its right\n to an additional five days to comply with the request. Id. Or the public body and the requestor\n can agree to an extension of whatever length of time. Id. This, of course, did not happen here.\n¶ 41 The public body may deny the request, but if so the “[d]enial shall be in writing as provided\n in Section 9” of the FOIA. Id. § 3(d). Section 9, for its part, requires that the public body\n formally notify the requestor of the denial and of the requestor’s right to seek further review\n of the decision. Specifically, under section 9, the public body shall\n “notify the requester in writing of the decision to deny the request, the reasons for the\n denial, including a detailed factual basis for the application of any exemption claimed,\n and the names and titles or positions of each person responsible for the denial. Each\n notice of denial by a public body shall also inform such person of the right to review\n by the Public Access Counselor and provide the address and phone number for the\n Public Access Counselor. Each notice of denial shall inform such person of his right to\n judicial review under Section 11 of this Act.” Id. § 9(a).\n¶ 42 And finally, for whatever reasons of oversight, mistake, or bad faith, the public body might\n fail to do any of the previous three things—comply, deny, or extend—within the five-day\n window. Such inaction is treated as a denial. Id. § 3(d) (“Failure to comply with a written\n request, extend the time for response, or deny a request within 5 business days after its receipt\n shall be considered a denial of the request.”). That inaction/denial carries two consequences:\n (1) if the public body ultimately produces records to the requestor, it cannot charge a fee, and\n (2) the public body is thereafter foreclosed from complaining that compliance with the request\n would be unduly burdensome. Id.\n¶ 43 With this in mind, we turn to the specific issues raised by this appeal.\n\n¶ 44 II\n¶ 45 We begin with the question of when Metra “received” Balzer’s FOIA request under section\n 3(d). See id. As noted, section 3(d) of the FOIA requires that “[e]ach public body shall ***\n either comply with or deny a request for public records within 5 business days after its receipt\n of the request.” See id.\n¶ 46 The parties agree, and so do we, that “5 business days after its receipt” (id.) means that the\n day of receipt, itself, is not included in the five-day calculation. See 5 ILCS 70/1.11 (West\n 2024) (in counting time where an act is to be performed within a particular period the first day\n is to be excluded and the last day included); People v. Ribar, 336 Ill. App. 3d 462, 463-64\n (2003).\n\n\n\n -6-\n\f¶ 47 But that begs the question of which day Metra “received” the FOIA request under section\n 3(d). Balzer says that day is Wednesday, July 31, the day he e-mailed the request to Metra’s\n designated e-mail for FOIA requests. Metra says that day is Thursday, August 1, the first day\n that Metra learned of the request, after its third-party security software initially quarantined\n the e-mail on July 31. If Metra is correct, then its denial of the FOIA request on Thursday,\n August 8, came on the fifth business day after “receipt” of the FOIA request and was timely.\n¶ 48 But as we explain below, we agree with Balzer that Metra “received” the FOIA request on\n the day Balzer sent it, July 31. So any response from Metra was due Wednesday, August 7, the\n fifth business day after July 31. Metra’s August 8 response was untimely.\n¶ 49 The FOIA does not define “receipt.” The parties have cited no Illinois decisions on point.\n The panel of this court hearing worker’s compensation appeals has interpreted “ ‘receipt’ ” as\n “coming into possession of.” South Berwyn School District #100 v. Illinois Workers’\n Compensation Comm’n, 2024 IL App (1st) 230722WC-U, ¶ 19. That is consistent with the\n verb form of the word, “receive,” which the dictionaries define as “to come into possession of\n or get from some outside source” (Black’s Law Dictionary (12th ed. 2024)) or “to come into\n possession of: acquire” (Merriam-Webster Online Dictionary, https://www.merriam-\n webster.com/dictionary/receive?src=search-dict-box (last visited Jan. 15, 2026)\n [https://perma.cc/7TAB-6Q8S].\n¶ 50 When Balzer e-mailed his FOIA request to Metra at the address designated by Metra, in\n every relevant sense that request came into Metra’s possession. Metra and Metra alone\n identified an e-mail address for requesters to send FOIA requests by e-mail. Metra and Metra\n alone set up a system that delegated initial receipt of those e-mails to a third-party screener,\n Mimecast. That was Metra’s choice, Metra’s decision, a system of Metra’s own creation (or at\n least adoption). The request was certainly no longer in the possession of Balzer, who had done\n all he was asked to submit a formal request.\n¶ 51 Metra cannot, of its own accord, delegate the responsibility for “receiving” its FOIA\n requests to some third party and then blame its delegee for the delay in receipt. Metra cites no\n authority under the FOIA that would allow it to toll the five-business-day window, and we can\n think of no reason why Metra should be able to benefit from a delay solely attributable to\n something on its side of the ledger.\n¶ 52 Imagine, for example, how Metra’s reasoning would apply had Balzer sent his request by\n United States mail, which he could have done. See 5 ILCS 140/3(c) (West 2018). If the Metra\n mail clerk forgot to walk the letter up to the FOIA officer until the following business day after\n it arrived, would Metra be entitled to an additional business day to respond, simply because\n the FOIA officer learned of it a day late? Of course not. We would charge Metra with\n knowledge of receipt the moment the letter landed in Metra’s mail room. We see no reason\n why the result should be any different in our context. See Insight Systems Corp. v. United\n States, 110 Fed. Cl. 564, 577 (2013) (in discussing government’s “receipt” of electronic\n communications, comparing “government computer server” to “a clerk in a government mail\n room”).\n¶ 53 The law has generally been loath to let recipients of e-mailed notices avoid deadlines by\n blaming spam filters or other security devices on the recipient’s side of the communication.\n See, e.g., Moore v. Duncanville Independent School District, 358 F. App’x 515, 517 (5th Cir.\n 2009) (per curiam) (attorney who claimed he did not receive opponent’s motion for summary\n judgment because it landed in his spam folder was not entitled to extension of deadline); Boyd\n\n -7-\n\f v. Monroe City Hall, No. 3:20-CV-01473, 2021 WL 1305385, at *4 (W.D. La. Mar. 8, 2021)\n (right-to-sue e-mail sent on August 17 was deemed “received” on that date, even though e-\n mail was diverted to plaintiff’s computer’s spam folder and plaintiff was unaware of it), report\n and recommendation adopted, No. 3:20-CV-01473, 2021 WL 1299204 (W.D. La. Apr. 7,\n 2021).\n¶ 54 The question in Insight Systems, 110 Fed. Cl. at 570, was whether the plaintiffs’ e-mailed\n bids on a government contract were timely, which in turn rose or fell on when the government\n “received” those e-mailed bids. The bidders’ e-mails only reached the first level of government\n servers, which performed security screening on the e-mails but were unable to forward them\n to the next level of servers (the “bridgehead” servers), much less on to the destination e-mail\n address, until after the deadline for bids had run. Id. at 570-71. When the bids ultimately\n reached the destination e-mail address, they were denied as untimely. Id. at 572. The court of\n federal claims ruled that the “proposals in question were ‘received’ when the [initial] server\n ‘took’ the electronic messages submitted by plaintiffs, submitted them to security checks, and,\n once those checks were passed, attempted to forward them, albeit unsuccessfully, to the second\n server in [the agency’s] mail system.” Id. at 577.\n¶ 55 We see little difference between Insight Systems and our case. Metra, to be sure, would\n argue that here, the security system was outside Metra’s computer system, operated by a third\n party, Mimecast. But again, that is only because Metra set things up that way. Metra should be\n charged with the responsibility for ensuring compliance with the five-business-day\n requirement no matter how it chooses to structure its security procedures.\n¶ 56 We find further support in state law that was not in effect at the time of these e-mail\n exchanges between Metra and Balzer and thus is merely confirmatory, not controlling. Illinois\n has now adopted the Uniform Electronic Transactions Act (UETA). See 815 ILCS 333/1\n et seq. (West 2022). The UETA has been adopted in nearly every state; Illinois adopted it in\n 2021. See Pub. Act 102-38 (eff. June 25, 2021). The UETA covers, among many other things,\n interactions involving the government. See 815 ILCS 333/2(11), 3 (West 2022); see South\n Berwyn School District #100, 2024 IL App (1st) 230722WC-U, ¶ 23.\n¶ 57 Under section 15(b) of the UETA, an electronic record is received when “it enters an\n information processing system that the recipient has designated or uses for the purpose of\n receiving electronic records or information of the type sent and from which the recipient is\n able to retrieve the electronic record.” (Emphasis added.) 815 ILCS 333/15(b) (West 2022).\n That record is deemed received “even if the place the information processing system is located\n is different from the place the electronic record is deemed to be received.” Id. § 15(c).\n¶ 58 If Metra, of its own accord, designated Mimecast’s processing system to initially receive\n its electronic FOIA requests, that request would be deemed “received” by Metra when\n Mimecast received it. Indeed, it would be deemed “received” at that moment regardless of\n whether Mimecast, much less Metra, was aware of it: “[a]n electronic record is received under\n subsection (b) even if no individual is aware of its receipt.” Id. § 15(e).\n¶ 59 Again, Illinois’s adoption of the UETA postdates the e-mails at issue here, but it is\n comforting that our reasoning is consistent with the law adopted nearly nationwide. See Insight\n Systems, 110 Fed. Cl. at 581 (“The UETA, which has been adopted in almost every state, holds\n that an electronic document is received when it enters the recipient’s computer system.”);\n Jevon C. Bindman, Note, The Spam Filter Ate My E-Mail: When Are Electronic Records\n Received?, 39 Wm. Mitchell L. Rev. 1295, 1330 (2013) (“[R]ecipients should be responsible\n\n -8-\n\f for the actions of their spam filters, even if the filter is located outside of the recipient’s system\n or operated by a third-party agent of the recipient. If a message is incorrectly filtered by an\n overactive spam filter within the recipient’s control, the recipient has a responsibility to check\n her junk mail folder or otherwise be held responsible for receipt of the message.”).\n¶ 60 Metra can and should do what it deems necessary to protect itself from potential security\n threats. A public-transit agency should do nothing less in this day and age. Indeed, a recent\n amendment to the FOIA itself provides, “[a]s a cybersecurity measure,” that “no public body\n shall be required to open electronically attached files or hyperlinks to view or access details of\n a request.” Pub. Act 104-438 (eff. Jan. 1, 2026) (amending 5 ILCS 140/3(c)). It is\n commendable for Metra to employ security safeguards to evaluate potential security threats.\n But that does not buy Metra extra time under the FOIA to comply with requests.\n¶ 61 If we ruled otherwise, the initial five-day period to respond to requests would become a\n fungible number. Here, the request was filed with Metra near noon on July 31 and reached\n Metra’s desk at 8:14 a.m. the next morning. But what if a public body’s security measures\n quarantined an e-mail for three days? Five days? By Metra’s logic, any amount of time that its\n security system delayed the request would hold off the start of the five-business-day clock.\n¶ 62 If Metra could demonstrate that, for reasons utterly outside its control, Balzer’s e-mail\n never reached its e-mail server (or that of any delegee like Mimecast), we might reach a\n different outcome, something we need not decide. Perhaps we would feel different if Metra for\n some reason did not learn of the e-mail until it was too late to respond—something else we\n need not decide.\n¶ 63 But here, Metra learned of the Balzer FOIA request the very next day after it was sent. It\n still had four business days to respond. And we reiterate that a public body like Metra, for\n many reasons, including an inability to comply with the request within the first five days, can\n give itself an extension of five business days on its own. See 5 ILCS 140/3(e) (West 2018).\n Metra had more than enough time to adjust to the very modest delay imposed by its third-party\n security software.\n¶ 64 Maybe the FOIA should be amended, given the many security threats these days, to provide\n for a reasonable period of time for such security quarantines—maybe two days, maybe a week,\n or maybe the legislature could create some additional procedures and safeguards on this\n important subject. But that is for the General Assembly to decide, not the judiciary. As things\n stand now, there is no exception in the FOIA that tolls the public body’s five-business-day\n period because a system that the public body itself created or adopted caused an internal delay\n in a request reaching its FOIA officer’s desk. We will not judicially read one in.\n¶ 65 Metra’s August 8 denial letter came on the sixth business day following Metra’s “receipt”\n of the FOIA request on July 31. That letter was untimely.\n\n¶ 66 III\n¶ 67 Metra claims the difference between July 31 and August 1 as a starting point for “receipt”\n makes no difference, because it denied the request during its e-mail exchange with Balzer on\n August 1. Either way, then, its denial was easily within the five-day window for responding.\n Metra did not raise this argument in the briefs on the cross-motions for summary judgment\n below. Still, we will consider the argument, as we may affirm on any basis in the record (see\n Lopez, 2017 IL 120643, ¶ 34), and Balzer briefed the issue in his response brief on appeal.\n\n\n -9-\n\f¶ 68 Metra’s position is that its e-mail exchanges on August 1 constituted a denial of Balzer’s\n request on the ground that the request was unduly burdensome under section 3(g) of the FOIA.\n See 5 ILCS 140/3(g) (West 2018). Section 3(g) reads in relevant part:\n “Requests calling for all records falling within a category shall be complied with unless\n compliance with the request would be unduly burdensome for the complying public\n body and there is no way to narrow the request and the burden on the public body\n outweighs the public interest in the information. Before invoking this exemption, the\n public body shall extend to the person making the request an opportunity to confer with\n it in an attempt to reduce the request to manageable proportions. If any public body\n responds to a categorical request by stating that compliance would unduly burden its\n operation and the conditions described above are met, it shall do so in writing,\n specifying the reasons why it would be unduly burdensome and the extent to which\n compliance will so burden the operations of the public body. Such a response shall be\n treated as a denial of the request for information.” Id.\n¶ 69 While not a model of legislative draftsmanship, this provision is relatively clear. “Section\n 3(g) of the FOIA exempts disclosure where (1) a request for all records falling within a\n category would be unduly burdensome for the complying public body, (2) there is no way to\n narrow the request, and (3) the burden on the public body outweighs the public interest in the\n information.” Hites v. Waubonsee Community College, 2018 IL App (2d) 170617, ¶ 55.\n¶ 70 As a precursor to finding that “there is no way to narrow the request,” the public body\n “shall extend” to the requestor “an attempt to reduce the request to manageable proportions.”\n 5 ILCS 140/3(g) (West 2018). If the public body extends that opportunity and determines that\n a narrower request is infeasible—because, for whatever reason, the parties cannot agree on a\n narrower request—the public body may deny the request as unduly burdensome. Then and\n only then will the public body’s response “be treated as a denial of the request.” Id.\n¶ 71 Said differently, unless the public body has invited the requestor to narrow his request and\n determined that a narrower request is not feasible, the public body cannot validly deny the\n request as unduly burdensome. See Heinrich v. White, 2012 IL App (2d) 110564, ¶ 21 (agency\n could not invoke section 3(g) exemption, as it failed to extend opportunity to narrow request);\n National Ass’n of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d\n 1, 15 (2010) (agencies’ failure to try to narrow request was fatal to claim of section 3\n exemption).\n¶ 72 Metra argues that, during its e-mail exchange with Balzer on August 1, it repeatedly offered\n to discuss a narrower request, repeatedly invoked the “unduly burdensome” exception, and\n explained its difficulties in complying with the request as written. And each time, of course, in\n increasingly curt and hostile language, Balzer rejected any notion of compromise. In Metra’s\n view, that e-mail chain checked all the boxes for a section 3(g) denial.\n¶ 73 We agree that Metra did everything required of it to set up a denial. Twice during its August\n 1 e-mail exchange, Metra used the phrase “unduly burdensome.” At least once, it explained\n how compliance with Balzer’s request would hinder Metra’s operations, including specifics.\n Four different times, Metra asked Balzer to narrow his request. And to be sure, Balzer replied\n in no uncertain (or polite) terms that he would not consider a narrower request. Metra set\n everything in place on August 1 to tee up a denial of this request.\n¶ 74 But it never actually denied the request—not on August 1, at least. Recall in our earlier\n discussion that, if the public body denies the FOIA request, the “[d]enial shall be in writing as\n\n - 10 -\n\f provided in Section 9” of the FOIA. 5 ILCS 140/3(d) (West 2018). Section 9 requires the public\n body to formally notify the requestor of the denial and the reasons therefor, the attorneys and\n FOIA officers involved in the decision, and the requestor’s right to seek further review of the\n decision. Id. § 9(a). Metra never told Balzer on August 1 that his request was denied. None of\n the disclosures required under section 9(a) were included in anything Metra told Balzer.\n¶ 75 None of this should come as a surprise to Metra, which knew this full well. Its August 8\n letter to Balzer followed the requirements of section 9(a) to the letter. Whatever its lawyers\n may now say in court, Metra knew it had not “denied” Balzer’s request on August 1; it knew\n it was required to send a formal denial per section 9. The only thing Metra did wrong,\n unfortunately, is wait one day too long to send that denial.\n¶ 76 Under the argument Metra now makes in court, as long as Metra told Balzer the request\n was “unduly burdensome” and offered him a chance to narrow his request, the request was\n automatically, sub silentio denied. If that were true, as Balzer notes, then Metra denied Balzer’s\n FOIA request four different times in that August 1 e-mail chain. Why keep going after the first\n denial? And more to the point still, why send the August 8 letter at all?\n¶ 77 The reason for that August 8 letter, as Metra well knew, was to formally deny the FOIA\n request in compliance with section 9. Absent a formal notification under section 9, a requestor\n like Balzer would have to read between the lines and somehow infer a “denial” without the\n agency ever saying the word “denied.” That runs against all notions of good government,\n making a requestor guess as to whether and when his request is denied. The “when,” alone, is\n important for citizens to know, as clocks start running on their rights after their requests are\n denied.\n¶ 78 There should be no mystery involved. If nothing else, the agency owes the requestor a clear\n denial, the reasons for that denial, and an explanation of his further remedies should he wish\n to challenge the denial, all of which section 9 requires. If we adopted Metra’s view, section 9,\n at least insofar as it concerns denials under section 3(g), would be a dead letter.\n¶ 79 Metra directs us to an opinion from the Public Access Counselor, or “PAC,” housed within\n the Office of the Attorney General and responsible for adjudicating many FOIA disputes. See\n id. § 9.5 (explaining duties of PAC). The PAC may issue opinions binding on the parties and\n advisory opinions. See id. § 9.5(f), (h). Opinions of the PAC do not bind the courts, but we\n give considerable weight to a well-reasoned opinion from the office. See Burris v. White, 232\n Ill. 2d 1, 8 (2009). The opinion on which Metra relies is public access opinion No. 16-008\n (2016 Ill. Att’y Gen. Pub. Access Op. No. 16-008, https://illinoisattorneygeneral.gov/Page-\n Attachments/FOIAPAC/2016-Binding-PAC-Opinions/16-008.pdf [https://perma.cc/8FWG-\n YCKN]).\n¶ 80 There, Mary Drumm sent a FOIA request to the City of Collinsville seeking various e-\n mails. Id. at 1-2. On July 20, 2016, the city wrote to Ms. Drumm that “ ‘the request is broad\n and consequently could be unduly burdensome in that there are over 50 emails consisting of\n over 100 pages plus numerous pages of attachments.’ ” Id. at 2. The city added that “ ‘[e]ach\n individual page would need to be retrieved by our IT personnel and reviewed by the FOIA\n Officer to determine if such information is exempt *** in whole or in part, and redactions may\n be necessary.’ ” Id. The city requested that Ms. Drumm narrow her FOIA request by July 27,\n 2016, “ ‘so that it would no longer be unduly burdensome and/or interfere with operations.’ ”\n Id.\n\n\n - 11 -\n\f¶ 81 The very next day, Ms. Drumm appealed to the PAC, claiming the city denied her request\n as unduly burdensome. Id. The city responded that it had not intended to deny the request, but\n the PAC ruled that, regardless of whether the city intended to do so, “by asking [Drumm] to\n narrow it ‘so it would no longer be unduly burdensome,’ the City’s response constitutes a\n denial of the request under the plain language of section 3(g) of FOIA.” Id. at 3, 5-6.\n¶ 82 We cannot adopt the PAC’s interpretation for the reasons we have given above. Under the\n PAC’s read, before invoking the “unduly burdensome” exemption, public bodies need not\n conclude that “there is no way to narrow the request.” 5 ILCS 140/3(g) (West 2018). They\n need not ever tell requestors, in clear language, that their request is denied. Id. § 9(a). They\n need not tell requestors which officers and lawyers of the public body were a part of the\n decision to deny. They need not inform requestors of their right to appeal to either the PAC or\n the courts. A clear requirement in section 3(g) would be eliminated, and section 9(a) would be\n wiped off the books for section 3(g) denials. In its place, the public body may simply say the\n request is unduly burdensome and ask them to narrow it—without waiting for an answer—and\n sub silentio, by operation of law, the request has been denied, whether the agency intended it\n or not, whether the requestor knew it or not. That is not what FOIA says nor what it could have\n intended.\n¶ 83 Of course, as discussed earlier, a public body’s failure to comply with, deny, or extend\n within five business days is treated, itself, as a denial. See id. § 3(d) (“Failure to comply with\n a written request, extend the time for response, or deny a request within 5 business days after\n its receipt shall be considered a denial of the request.”). If the reader is wondering why we\n went to all this trouble only to arrive at the same conclusion—a denial—it is not quite that\n simple.\n¶ 84 A denial by operation of law, after the public body fails to respond, carries two adverse\n consequences to the public body: (1) if the public body ultimately produces records to the\n requestor, it cannot charge a fee, and (2) the public body is thereafter foreclosed from\n complaining that compliance with the request would be unduly burdensome. Id. So that is a\n very real difference indeed here, because Metra’s only argument against compliance is the\n section 3(g) “unduly burdensome” exemption. By failing to effectively comply, deny, or\n extend within five business days, Metra has forfeited its only argument against compliance.\n See id.\n¶ 85 Because the parties have already settled this matter insofar as the production of documents\n is concerned, the victory is pyrrhic for Balzer. But it does make him the prevailing party and\n thus entitled to attorney fees and costs. Id. § 11(i). Balzer is also seeking a penalty against\n Metra, which he is free to pursue. See id. § 11(j).\n¶ 86 It gives us no pleasure to rule against Metra here, as the FOIA officer went to great lengths\n to address Balzer in good faith and in a courteous, helpful manner, only to be met with curt,\n dismissive, and outright rude responses from Balzer. The only mistake Metra made was being\n a day late in its denial, an innocent mistake but a mistake no less. Move Metra’s response up\n one day, and we likely would have upheld Metra’s denial and affirmed the circuit court. But\n that one day makes all the difference, so Balzer prevails.\n¶ 87 The lengthy proceedings below included much litigation surrounding Balzer’s attempts to\n disqualify judges and sanction his opponent. The circuit judge, who exhibited patience and\n professionalism at all times, will note on remand that the FOIA only entitles the prevailing\n\n\n - 12 -\n\f party to “reasonable attorney’s fees and costs.” (Emphasis added.) Id. § 11(i).\n\n¶ 88 CONCLUSION\n¶ 89 The judgment of the circuit court is reversed. The cause is remanded for further\n proceedings.\n\n¶ 90 Reversed and remanded.\n\n\n\n\n - 13 -\n\f"} {"dedup_key":"2026 IL App (1st) 241435-U","dedup_key_type":"neutral_citation","neutral_citation":"2026 IL App (1st) 241435-U","case_name":"Tobias v. City of Chicago Office of the Mayor","court_level":"Appellate","appellate_district":"1st","year":2026,"county":"Cook","appellate_docket":"1-24-1435","circuit_docket":"23 CH 05933","published":0,"authoring_justice":"Fitzgerald Smith","statute":["FOIA"],"exemptions_cited":[],"public_body":"City of Chicago Office of the Mayor","requesting_party":"James Tobias","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the trial court's finding that the City's search for records was reasonable and adequate. However, it reversed the grant of summary judgment regarding statutory civil penalties, remanding for an evidentiary hearing to determine if the City's delayed production of records was willful or in bad faith.","best_text_source":"Court Opinions - FOIA/Tobias v. City of Chicagos Office of Mayor 2026 IL App (1st) 241435-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:11:04.234548","site_category":"Search & Production","date_decided":"2026-03-02","site_url":"/cases/2026%20IL%20App%20(1st)%20241435-U/","text_url":"/case-text/2026%20IL%20App%20(1st)%20241435-U.txt","full_text":" 2026 IL App (1st) 241435-U\n\n FIRST DIVISION\n March 2, 2026\n\n No. 1-24-1435\n\nNOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the\nlimited circumstances allowed under Rule 23(e)(1).\n______________________________________________________________________________\n\n IN THE\n APPELLATE COURT OF ILLINOIS\n FIRST DISTRICT\n______________________________________________________________________________\n\nJAMES TOBIAS, ) Appeal from the\n ) Circuit Court of\n Plaintiff-Appellant, ) Cook County.\n )\n v. )\n ) No. 23 CH 05933\nCITY OF CHICAGO OFFICE OF THE MAYOR, )\n ) The Honorable\n Defendant-Appellee. ) David B. Atkins,\n ) Judge Presiding.\n______________________________________________________________________________\n\n PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court.\n Justices Howse and Cobbs concurred in the judgment.\n\n ORDER\n\n HELD: The scope of the search by defendant for public records responsive to\n plaintiff’s freedom of information request was reasonable and adequate, and summary\n judgment in favor of defendant on this issue is affirmed. Defendant was not entitled to\n summary judgment on plaintiff’s claim for statutory penalties based upon defendant’s\n assertion that its failure to produce responsive records until mid-litigation was not willful,\n intentional, or in bad faith as a matter of law.\n\n¶1 Plaintiff-appellant James Tobias appeals from the circuit court’s order denying his partial\n\nmotion for summary judgment and granting summary judgment in full to defendant-appellee, the\n\nCity of Chicago’s Office of the Mayor (City), under the Freedom of Information Act (FOIA) (5\n\fNo. 1-24-1435\n\n\nILCS 140/1 et seq. (West 2022)). On appeal, Tobias contends the court erred in determining that\n\nthe scope of the City’s FOIA search was reasonable and in granting the City summary judgment\n\nas to civil penalties, thus declaring them unwarranted. We affirm in part and reverse in part.\n\n¶2 I. BACKGROUND\n\n¶3 The record reveals that in May 2023, Tobias, an independent journalist, sent two FOIA\n\nrequests to the City, with one seeking “[a]ll text messages sent or received by Chief of Staff\n\nRichard Guidice on May 15 and May 16, 2023,” and the other seeking “[a]ll text messages\n\nbetween Mayor Brandon Johnson and Stacy Davis Gates, president of the Chicago Teachers\n\nUnion,” including “records produced between May 15, 2023 and the date this request is\n\nprocessed.” (Emphasis added.) We take judicial notice that Mayor Johnson was inaugurated on\n\nMay 15, 2023. See People v. Castillo, 2022 IL 127894, ¶ 39; Boston v. Rockford Memorial\n\nHospital, 140 Ill. App. 3d 969, 972 (1986); City of Chi., Off. of the Mayor,\n\nwww.chicago.gov/city/en/depts/mayor.html (last visited Dec. 11, 2025) [https://perma.cc/B6K5-\n\n2P7R].\n\n¶4 The City assigned tracking numbers FO46961-051823 for the Davis Gates request and\n\nFO46965-051823 for the Guidice request, while recording submission dates of May 18, 2023.\n\nNevertheless, the record reflects that Tobias e-mailed the requests to the City via the FOIA\n\nrecords system on May 19, 2023. The same day, the City responded to Tobias, noting that his\n\nrequests had been submitted and were “being processed.” The City also provided him the\n\ntracking numbers for review at the “Public Records Center.” The parties on appeal appear to\n\nagree that May 19, 2023, is the date the City received Tobias’s records requests. See 5 ILCS\n\n140/3(d) (West 2022).\n\n\n\n\n 2\n\fNo. 1-24-1435\n\n\n¶5 In response to the requests, on May 26, 2023, the mayor’s assistant press secretary and\n\nFOIA officer Thomas Skelton contacted the Chicago Department of Assets, Information, and\n\nServices (Information Department) to initiate a search of Guidice’s texts on his city-issued cell\n\nphone. The same day, Skelton issued letters via a computer application to Tobias, informing him\n\nthat the City required a five-day extension, to June 2, 2023, for one or more of the reasons cited\n\nin the statute (id. § 3(d), (e)), including that the requested records were stored in other locations;\n\npersonnel first had to examine whether the records were exempt; the requests could not be timely\n\ncomplied with absent undue burden to the public body; and they had to consult another public\n\nbody or components of a public body having a substantial interest in the requests. Skelton did not\n\nobtain any responsive records by June 2, 2023, and, therefore, did not produce records by that\n\ndue date. Under FOIA, this led to a constructive denial of the requests. 1 See id. § 3(e), (f)\n\n(“Failure to respond within the time permitted for extension shall be considered a denial of the\n\nrequest.”). Several days later, on June 5, 2023, Tobias sought a status update, but the City did not\n\nrespond.\n\n¶6 On June 23, 2023, Tobias filed suit against the City, alleging it willfully and intentionally\n\nor otherwise in bad faith failed to comply with FOIA. As relief, Tobias requested that the City\n\nconduct “adequate searches of the requested records” and produce the non-exempt records, in\n\naddition to paying civil penalties and attorney fees. Attached to the complaint were the\n\ndocuments revealing the correspondences between Tobias and the City, including his requests.\n\n\n\n 1\n The parties do not dispute that on May 26, 2023, within five business days of May 19, the City\nproperly sought to extend the time to respond to the records requests. See 5 ILCS 140/3(d), (e) (West\n2022) (“The time for response *** may be extended by the public body for not more than 5 business days\nfrom the original due date”). The parties agree that the due date for records following that five-day\nextension was Friday, June 2, 2023. See id. We note that the due date was actually Monday, June 5, 2023,\ngiven that Monday, May 29, was Memorial Day and thus not a business day. We nonetheless proceed\nbased on the parties’ agreement.\n\n 3\n\fNo. 1-24-1435\n\n\n¶7 The City filed its answer on August 4, 2023, also alleging several affirmative defenses,\n\nincluding that records of Mayor Johnson and Guidice were exempt. Specifically, the City\n\nasserted exemptions for private and personal information (id. § 7(1)(b), (c)); records involving\n\nexpressed opinions or policies/actions (id. § 7(1)(f)); and certain communications/materials made\n\nin relation to litigation or an audit (id. § 7(1)(m)).\n\n¶8 In October 2023, Tobias moved for partial summary judgment under FOIA, asserting that\n\nthe public records were presumed to be open for inspection and the City had to prove any\n\nexemptions, and asking that the records be immediately released. He also moved for an index of\n\nthe withheld records. See id. § 11(e). Tobias reserved seeking civil penalties and attorney fees for\n\nafter a ruling on the requested records’ production and search issues. See id. § 11(i), (j).\n\n¶9 The City filed its opposition to the motion, along with its own cross-motion for summary\n\njudgment on November 20, 2023. As part of its motion, the City produced Tobias’s requested\n\nrecords, consisting of four pages of text messages. The City maintained it had conducted a\n\nreasonable search and argued that Tobias’s action was therefore moot. The City further asserted\n\nthat the denial of Tobias’s request was not made in bad faith and there was no evidence to merit\n\ncivil penalties. In support, the City attached Tobias’s complaint, along with the aforementioned\n\nrecords. The City also attached Skelton’s affidavit, wherein he described the searches conducted\n\non both Guidice’s and Mayor Johnson’s cell phones. As for Guidice, Skelton attested that the\n\nInformation Department could not timely search his phone on May 26, 2023, because Guidice\n\nhad not enrolled in text archiving. 2 Once Guidice did so, the Information Department conducted\n\n\n\n\n 2\n Skelton attested it was his understanding that when a cell phone user enrolls in text archiving,\nthe system created an archive of all text messages on the phone, including those existing prior to the\nenrollment date.\n\n 4\n\fNo. 1-24-1435\n\n\nthe search. On July 13, 2023, the Information Department sent Guidice’s responsive texts to\n\nSkelton.\n\n¶ 10 Skelton attested that subsequently, on August 11, 2023, he searched Mayor Johnson’s\n\npersonal cell phone, seeking text messages from May 15 to June 2, 2023, the constructive denial\n\ndate. See Better Government Ass’n v. City of Chicago Office of Mayor, 2020 IL App (1st)\n\n190038, ¶ 36 (noting, communications pertaining to public business within public officials’\n\npersonal text messages and e-mail accounts are public records subject to FOIA). During the\n\nsearch, Skelton identified a number of texts potentially responsive to the FOIA request, although\n\ncertain ones were redacted as personal communications that did not qualify as public records. On\n\nAugust 24, Skelton asked the Information Department to search Mayor Johnson’s city-issued cell\n\nphone, which did not produce any responsive texts. Due to the complaint Tobias filed and on the\n\nadvice of counsel, Skelton did not provide Tobias with the responsive text messages. Skelton\n\nexplained that he failed to meet the June 2, 2023, deadline because he “did not have any\n\nresponsive records at that time.”\n\n¶ 11 The City therefore argued it was entitled to summary judgment. Tobias responded in\n\nrelevant part that the City “arbitrarily limited the date range” of the Johnson/Davis Gates request.\n\nTobias argued that, according to the plain language of his request which sought “records\n\nproduced between May 15, 2023 and the date this request is processed,” the City should have\n\nsearched Mayor Johnson’s personal cell phone for the dates, May 15 through August 11 (rather\n\nthan June 2), 2023. He reasoned that the City “did not do any work to process the request until\n\n\n\n\n 5\n\fNo. 1-24-1435\n\n\nAugust 11,” when it conducted the search. Tobias also challenged as suspect the redactions and\n\nmethodology for searching the cell phones. 3\n\n¶ 12 Tobias next argued that the court should deny the City’s motion on civil penalties,\n\nmaintaining that a reasonable fact finder could conclude the City had acted willfully,\n\nintentionally, and in bad faith by needlessly delaying production of the texts and asserting\n\nexemptions over documents it had never reviewed. He noted the City had filed its answer and\n\naffirmative defenses before reviewing all of the recovered records. Tobias requested an\n\nevidentiary hearing to determine whether civil penalties were warranted, although he expressly\n\nnoted he had “not moved for civil penalties” but reserved the right to do so. He responded to the\n\nCity’s motion in that regard, claiming there was a genuine issue of material fact.\n\n¶ 13 The circuit court heard oral arguments on the parties’ cross-motions for summary\n\njudgment and, pursuant to the parties’ agreement, conducted an in camera review of the redacted\n\nmaterial, finding those messages did not constitute public records because they did not pertain to\n\nthe transaction of public business. See 5 ILCS 140/2(c) (West 2022). The court then issued a\n\nwritten order denying Tobias’s partial motion for summary judgment and granting the City’s\n\nmotion in full.\n\n¶ 14 In so doing, the court rejected Tobias’s contention that the City was required to extend\n\nthe search date to August 11, 2023, based on Tobias’s request of “records produced between\n\nMay 15, 2023, and the date this request is processed.” The court noted that the term “processed”\n\nwas undefined and that shortly after receiving Tobias’s requests, Skelton assigned them internal\n\n\n 3\n Tobias argued the City had not shown it adequately searched the mayor’s city-issued cell phone,\nas there was no evidence the mayor had enrolled in text archiving. Tobias requested that the court order a\nsupplemental search. Pursuant to that request, the City later filed a supplemental affidavit from deputy\npress secretary and FOIA officer Hibo Aden, attesting that following a search, there were no text\nmessages between Mayor Johnson and Davis Gates on the mayor’s city-issued cell phone from May 2023\nto April 4, 2024.\n\n 6\n\fNo. 1-24-1435\n\n\nreference numbers and notified Tobias of the five-day extension. The court ruled that June 2,\n\n2023, the constructive denial date, was a proper end date for the search. The court further found\n\nthe City’s delay in producing records was not a deliberate, dishonest attempt to violate FOIA.\n\nRather, the City simply did not have the requested records by the June 2 due date.\n\n¶ 15 Following the granting of summary judgment for the City, Tobias appealed.\n\n¶ 16 II. ANALYSIS\n\n¶ 17 As set forth, the parties filed cross-motions for summary judgment on the issue of\n\nwhether the City violated FOIA. In seeking summary judgment, the City also moved to avert the\n\nimposition of civil penalties, while Tobias claimed there was a genuine issue of material fact in\n\nthat regard.\n\n¶ 18 Summary judgment is proper where the pleadings, affidavits, depositions, admissions,\n\nand exhibits, when viewed in a light most favorable to the nonmoving party, demonstrate that\n\nthere is no genuine issue as to any material fact and the movant is entitled to judgment as a\n\nmatter of law. 735 ILCS 5/2-1005(c) (West 2022); Koulogeorge v. Campbell, 2012 IL App (1st)\n\n112812, ¶ 21. Summary judgment is a drastic means of disposing of litigation and, therefore,\n\nshould be allowed only where the moving party’s right to judgment is clear and free from\n\ndoubt. Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 423-24 (1998). As such, if reasonable\n\npersons can draw divergent inferences from undisputed material facts or if there is a dispute as to\n\na material fact, summary judgment should be denied and the issue decided by the trier of fact. Id.\n\nat 424. Where, as here, the parties also file cross-motions for summary judgment, they concede\n\nthere are no genuine issues of material fact on distinct issues and invite the court to decide those\n\nquestions presented as a matter of law. Koulogeorge, 2012 IL App (1st) 112812, ¶ 21. We\n\nproceed in our de novo review of the trial court’s decision regarding summary judgment and the\n\n\n\n 7\n\fNo. 1-24-1435\n\n\nconstruction of FOIA. Kelly v. Village of Kenilworth, 2019 IL App (1st) 170780, ¶ 29; Dumke v.\n\nCity of Chicago, 2013 IL App (1st) 121668, ¶ 11; Koulogeorge, 2012 IL App (1st) 112812, ¶ 21.\n\n¶ 19 The purpose of FOIA is to allow public scrutiny of governmental records. Dumke, 2013\n\nIL App (1st) 121668, ¶ 12; 5 ILCS 140/1 (West 2022). The government, under FOIA, has a\n\nfundamental obligation to operate openly and provide public records as expediently and\n\nefficiently as possible. Green v. Chicago Police Department, 2022 IL 127229, ¶ 37. To that end,\n\na public body must comply with a valid request for information within five business days of\n\nreceiving the request, unless a narrow statutory exemption applies. 5 ILCS 140/3(d), 7 (West\n\n2022); Day v. City of Chicago, 388 Ill. App. 3d 70, 73 (2009); see In re Appointment of Special\n\nProsecutor, 2019 IL 122949, ¶ 60 (records that do not fall within the statutory exemptions are\n\nimproperly withheld); Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d\n\n390, 418 (2006) (noting that “[t]he burden shall be on the public body to establish that its refusal\n\nto permit public inspection or copying is in accordance with the provisions of the FOIA”).\n\n¶ 20 Within that period, the public body also may extend its response time “not more than 5\n\nbusiness days from the original due date” for several enumerated statutory reasons, unless the\n\nparties otherwise agree in writing on an alternate extension date. 5 ILCS 140/3(d), (e) (West\n\n2022). Although FOIA provides the public easy access to government information and\n\nencourages requestors to seek judicial relief where a public body wrongfully withholds records,\n\nFOIA may not be used to disrupt a governmental body’s proper work beyond the responsibilities\n\ndelineated therein. Id. § 1; Special Prosecutor, 2019 IL 122949, ¶ 25; Uptown People’s Law\n\nCenter v. Department of Corrections, 2014 IL App (1st) 130161, ¶ 10; Dumke, 2013 IL App\n\n(1st) 121668, ¶ 12.\n\n¶ 21 A. Scope of the Records Search\n\n\n\n 8\n\fNo. 1-24-1435\n\n\n¶ 22 Tobias first contends that the City improperly narrowed the scope of its search for public\n\nrecords under FOIA. Here, Tobias submitted two requests for governmental records, and the City\n\nextended the response period five business days but then did not produce the requested records\n\nby the June 2, 2023, deadline or respond to Tobias’s query for a status update. See Green, 2022\n\nIL 127229, ¶ 15; 5 ILCS 140/3(e), (f) (West 2022). As set forth, Tobias filed suit shortly\n\nthereafter, and the City ultimately provided Tobias with four pages of public records.\n\n¶ 23 As before the circuit court, Tobias argues that the City failed to comply with his\n\nJohnson/Davis Gates request because it prematurely ended the records search on Mayor\n\nJohnson’s personal cell phone. 4 Specifically, Tobias maintains that he sought all text messages\n\nbetween Mayor Johnson and Davis Gates between May 15, 2023, and “the date this request is\n\nprocessed.” Citing the principle that public bodies must liberally construe FOIA requests (Better\n\nGovernment Ass’n, 2020 IL App (1st) 190038, ¶ 31), Tobias asserts the language, “is processed,”\n\nencompassed the days up to and including when the City ultimately searched for and obtained\n\nthe records. He claims this was August 11. As relief, he asks that we reverse and remand for the\n\nCity to conduct his proposed records search from May 15 to August 11, 2023, and produce any\n\nadditional responsive records.\n\n¶ 24 The City responds, as it did below, that it “processed” the Johnson/Davis Gates request\n\non June 2, 2023, the date the request was constructively denied by statute. See 5 ILCS 140/3(e),\n\n(f) (West 2022). The City maintains the scope of its search was reasonable. Thus, there are no\n\nimproperly withheld public records. See id. § 11(d).\n\n¶ 25 To prevail on summary judgment under FOIA in this case, the public body had the\n\nburden of showing that its search and the scope of the search were adequate. See Chicago\n\n\n\n 4\n Tobias does not challenge the City’s search of Mayor Johnson’s city-issued cell phone.\n\n 9\n\fNo. 1-24-1435\n\n\nRecycling Coalition v. City of Chicago Department of Streets & Sanitation, 2023 IL App (1st)\n\n220154, ¶ 26; Rodriguez v. Department of Defense, 236 F. Supp. 3d 26, 35 (D.D.C. 2017). The\n\nadequacy of that search must be judged by a standard of reasonableness and depends on the\n\nindividual facts of the case. See Better Government Ass’n, 2020 IL App (1st) 190038, ¶ 31. In\n\nliberally construing the FOIA requests, the City was required to search those places that were\n\nreasonably likely to contain the responsive records. See id.\n\n¶ 26 The Plain Language of the Records Request\n\n¶ 27 We agree that the City did just that in analyzing the plain language, “the date this request\n\nis processed,” and in describing the scope of its search via Skelton’s affidavit. The verb\n\n“process” means “to subject to or handle through an established usually routine set\n\nof procedures,” as in to “process insurance claims.” (Emphasis in original.) Merriam-Webster\n\nOnline Dictionary, www.merriam-webster.com/dictionary/process (last visited Dec. 12, 2025)\n\n[https://perma.cc/F6YC-RM5C]. The term “processed” in the phrase “is processed” is a past\n\nparticiple functioning as a predicate adjective. See William Strunk Jr. & E. B. White, The\n\nElements of Style 18, 93 (4th ed. 1999).\n\n¶ 28 Thus, the passive voice participial phrase can be interpreted in various ways given that\n\n“to process” includes procedures or stages. For example, as the trial court noted, the City\n\n“processed” Tobias’s two FOIA requests when it acknowledged their receipt and assigned them\n\ninternal reference numbers. The City also “processed” the requests when it denied the requests\n\nby operation of the statute when the response window closed. It then “processed” the requests\n\nwhen it conducted the searches. Notably, the searches of Mayor Johnson’s personal and work\n\n\n\n\n 10\n\fNo. 1-24-1435\n\n\ncell phones occurred on different days, August 11 and 24, 2023, respectively. 5 Curiously, Tobias\n\nis not requesting a search through August 24, 2023, notwithstanding that his records request did\n\nnot distinguish between Mayor Johnson’s personal and work cell phones. Last, the requests were\n\n“processed” when the records were physically retrieved and then again when they were produced\n\nduring litigation.\n\n¶ 29 Tobias’s request, even when liberally analyzed to effectuate FOIA’s purpose of open\n\ngovernmental accountability, reasonably could be construed to require the search to conclude the\n\ndate the devices were searched, when the records were retrieved, or when the records were\n\nproduced. See Better Government Ass’n, 2020 IL App (1st) 190038, ¶ 31. Where a request may\n\nbe interpreted in multiple ways, we will not require a public body to be bound to one\n\ninterpretation over another. A person requesting documents of a governmental body funded by\n\ntaxpayer dollars must make his request sufficiently clear, but Tobias did not do that. See id. at 97\n\n(noting that “a requestor must ‘reasonably describe[ ]’ the records sought”). Otherwise, the\n\nrequest itself thwarts the expedient and efficient production of public documents.\n\n¶ 30 The Scope of the Search for Records Was Adequate\n\n¶ 31 Regardless of the interpretations that Tobias’s request inspired, we conclude the scope of\n\nthe City’s search was more than adequate. Here, the reasonable end date for the search was in\n\nfact May 19, 2023, when the City acknowledged receiving the request, rather than the statutory\n\ndenial date. See Better Government Ass’n, 2020 IL App (1st) 190038, ¶ 31. When Tobias e-\n\nmailed his request on May 19, 2023, for text messages exchanged between Mayor Johnson and\n\nDavis Gates from May 15, 2023, until the date the request was “processed,” Tobias effectively\n\n\n\n 5\n We observe that the City searched the officials’ cell phones well past the June 2, 2023, statutory\ndeadline. We address only the required scope of the search in light of the request and not the City’s\ncompliance with FOIA deadlines, a matter discussed in the second section of this decision.\n\n 11\n\fNo. 1-24-1435\n\n\nasked for text messages that had not been created. That is, no text messages between May 20,\n\n2023, and August 11, 2023, then existed. Under FOIA, an individual cannot prospectively\n\nrequest a record that does not yet exist. Therefore, the appropriate scope of the search was May\n\n15 to May 19, 2023.\n\n¶ 32 A review of FOIA supports this conclusion, as the statute’s language is the most reliable\n\nindicator of the legislature’s intent, and we must give effect to its plain and ordinary\n\nmeaning. Kelly, 2019 IL App (1st) 170780, ¶ 29. Section 2 of FOIA defines “public records” as\n\nall records pertaining to the public business “having been prepared by or for, or having been or\n\nbeing used by, received by, in the possession of, or under the control of any public body.” 5\n\nILCS 140/2 (West 2022); see Hites v. Waubonsee Community College, 2016 IL App (2d)\n\n150836, ¶ 71 (noting that public records are “information or documentation pertaining to a public\n\nbody’s operation that the public body prepared, used, or had under its control”). Dovetailing with\n\nthis definition, section 1.2 also states: “[a]ll records in the custody or possession of a public body\n\nare presumed to be open to inspection or copying.” (Emphasis added.) 5 ILCS 140/1.2 (West\n\n2022); see also id. §5 (requiring public bodies to make available “a reasonably current list of all\n\ntypes or categories of records under its control”). These statutory provisions contemplate that the\n\nrecords requested already must be in the public body’s possession or under its control.\n\n¶ 33 Likewise, the legislature expressly contemplated the consequences of when a public body\n\nfails to respond to a request within the five-day extension period but thereafter provides the\n\nrequested public records. In such an instance, the public body cannot charge a fee for the copies\n\nand, if it fails to respond, cannot treat the request as unduly burdensome. Id. § 3(d). The statute\n\ndoes not provide that the search can be extended beyond the request date or, assuming the\n\nrequested records exist, the statutory denial date. See id. (“Failure to comply with a written\n\n\n\n 12\n\fNo. 1-24-1435\n\n\nrequest *** or deny a request within 5 business days after its receipt shall be considered a denial\n\nof the request.”). We thus reject Tobias’s contention that the City had to search for records up\n\nuntil August 11, 2023, the date the City searched Mayor Johnson’s personal cell phone. We\n\nagree with the City that Tobias’s “request cannot impose a more expansive obligation than that\n\nimposed by FOIA itself.”\n\n¶ 34 Tobias’s argument also runs contrary to our supreme court’s recent decision in Green,\n\n2022 IL 127229. There, the plaintiff, a former inmate convicted of a quadruple homicide,\n\nsubmitted a request to the Chicago Police Department (CPD) on November 18, 2015, for past\n\ncomplaints against police officers. CPD constructively denied the request and cited, as an\n\nexemption, an injunction and court order issued in a separate case requiring CPD to destroy\n\ncertain of those documents. The injunction, however, was subsequently invalidated and that case\n\noverturned during the litigation in Green. On appeal, the supreme court considered “whether\n\nFOIA authorizes the circuit court to account for changed circumstances” regarding whether the\n\npublic documents were “improperly withheld” under section 11 of FOIA. Id. ¶ 1. More\n\nspecifically, Green addressed whether the withholding of documents should be analyzed at the\n\nstatutory denial stage, when the injunction/case precluded the documents’ production, or during\n\nlitigation, when the injunction/case were invalidated and no longer served as an exemption.\n\n¶ 35 The supreme court in Green sided with the statutory denial period, stating a public body\n\nneed not “continue monitoring a request once it has been denied.” Id. ¶ 53. The court reasoned\n\nthat a requester had five years to file a complaint after being denied access and could unfairly\n\ndelay judicial review while requiring the public body to endlessly reprocess old requests or risk\n\nbeing penalized. The court, moreover, held that if circumstances change, a requester can simply\n\nresubmit “a previously unsuccessful request.” Id. Although not directly on point, Green counsels\n\n\n\n 13\n\fNo. 1-24-1435\n\n\nthat in this case, the City was required to analyze Tobias’s request based on records available\n\nduring the statutory response period, not afterwards during litigation, as Tobias argues. Likewise,\n\nGreen counsels that if Tobias wished to access text messages created beyond May 19, 2023, he\n\nsimply could have submitted another FOIA request. See id.\n\n¶ 36 Distinguishing Federal Caselaw\n\n¶ 37 Citing federal case law, Tobias nonetheless insists that the “date of search” was the\n\nproper end date for his request. We reject this contention for several reasons. First, federal court\n\ndecisions remain only persuasive authority, notwithstanding the similarity between the Illinois\n\nand federal FOIA statutes, and this court is bound by decisions of the Illinois supreme court\n\nunless the United States Supreme Court offers contrary authority. Special Prosecutor, 2019 IL\n\n122949, ¶ 55; Village of Deerfield v. Greenberg, 193 Ill. App. 3d 215, 222 (1990); see Dumke,\n\n2013 IL App (1st) 121668, ¶ 14 (noting the Illinois FOIA was patterned after the federal\n\nFreedom of Information Act (5 U.S.C. § 552 (2000))). Tobias fails to point to any Illinois\n\nauthority mandating the date-of-search end date for a request such as his. While he wishes this\n\ncourt to adopt that standard, we are not free to rewrite legislation or ignore the statutes identified\n\nabove. See People v. Reed, 2025 IL 130595, ¶ 93.\n\n¶ 38 Second, as the City notes, the federal FOIA differs in numerous ways from our state\n\nFOIA as to the records request and response process. Under the federal FOIA, governmental\n\nagencies have 20 days to determine “whether to comply with [a] request” once it is received,\n\nalthough that period may be extended in “unusual circumstances,” such as when the records are\n\nstored in other facilities. 5 U.S.C. § 552(a)(6)(A)(i), (B), (C)(i) (2018). Also, if a request cannot\n\nbe processed within 20 days, the agency may allow the requester to make amendments. 5 U.S.C.\n\n§ 552(a)(6)(B)(ii) (2018). Regardless, if the agency determines to comply with a request, the\n\n\n\n 14\n\fNo. 1-24-1435\n\n\nrecords must “be made promptly available” to the requester. 5 U.S.C. § 552(a)(3)(A), (6)(C)(i)\n\n(2018). As such, the federal provisions do not have a fixed compliance deadline. By contrast, our\n\nstatutes provide for a short 5-to-10-day period to comply with or deny a request for records\n\nalready under the public body’s control. 5 ILCS 140/3(d) (West 2022). Tobias has not made a\n\npersuasive argument that the federal and state statutory schemes are sufficiently similar\n\nregarding the search process and scope such that we are compelled to follow federal law for the\n\n“date of search.” See Kelly , 2019 IL App (1st) 170780, ¶ 43 (noting key differences can exist\n\nbetween federal and our state FOIA provisions).\n\n¶ 39 Third, the federal cases on which Tobias relies are inapposite, as they involve federal\n\nadministrative rules. In Public Citizen v. Department of State, 276 F.3d 634 (D.C. Cir. 2002), the\n\nplaintiff, a nonprofit organization, sued the Department of State alleging that its date-of-request\n\ncut-off policy had been promulgated without sufficient notice and comment under the federal\n\nadministrative procedure rules and also was unreasonable when applied to the plaintiff’s FOIA\n\nrequests. On appeal, the district court rejected the first argument. As to the second, it merely held\n\nthat the Department of State had “made no showing” that a date-of-request cut-off policy was\n\nalways reasonable, thus suggesting it could be applied on a case-by-case basis. Id. at 643-44. As\n\nspecifically applied to the plaintiff’s FOIA request, the court held that the Department of State\n\nhad failed to justify its date-of-request policy or that the alternative date-of-search cut-off would\n\nresult in an “administrative nightmare.” Id. at 644. The court reasoned that the plaintiff should\n\nnot be forced to “file multiple FOIA requests to obtain documents that the Department [of State]\n\nwould have released in response to a single request had it used a later cut-off date.” Id. at 643.\n\nThe court also reasoned that a date-of-search cut-off presented minimal hassle and increased\n\ndocuments retrieval.\n\n\n\n 15\n\fNo. 1-24-1435\n\n\n¶ 40 Following that case, Edmonds Institute v. United States Department of the Interior, 383\n\nF. Supp. 2d 105, 111 (D.D.C. 2005), stated that the D.C. Circuit had “all but endorsed the use of\n\ndate-of-search as the cut-off date for FOIA requests.” There, the court noted that the Department\n\nof Interior had adopted a date-of-search policy rule and rejected the plaintiff’s request for a\n\nsearch cut-off on the date the documents were released. See 5 U.S.C. § 552(a)(1), (D)(i) (2018)\n\n(each agency must publish rules for public records requests).\n\n¶ 41 Tobias’s reliance on these cases is misplaced. Tobias has not pointed to any similar\n\nadministrative rules issued by the City, or any other public body, which dictate a date-of-search\n\ncut-off date. Notably, under Illinois’s FOIA, public bodies may promulgate rules and regulations\n\nin accordance with section 3 as to “the availability of records and procedures to be followed.”\n\nSee 5 ILCS 140/3(h) (West 2022). Moreover, our supreme court in Green expressly rejected the\n\nsame reasoning that Public Citizen relied on to justify adopting a date-of-search policy. Our\n\nsupreme court in Green stated: “Assessing the public body’s denial under the circumstances that\n\nexisted at the time of the denial fosters finality in processing information, allows a requester to\n\nrefile the request to account for postresponse events, and promotes the goal of providing\n\nreleasable records expediently and efficiently.” Green, 2022 IL 127229, ¶ 58. Based on the\n\nforegoing, Tobias has failed to persuade this court that we must follow federal case law here.\n\n¶ 42 We therefore conclude that the City has fulfilled its burden of establishing the scope of its\n\nsearch was more than reasonable and, thus, adequate. Better Government Ass’n, 2020 IL App\n\n(1st) 190038, ¶ 32. Tobias has failed to produce countervailing evidence or argument. See id.\n\nThus, the scope/sufficiency of the search is not genuinely at issue, records were not improperly\n\nwithheld, and the trial court rightly granted the City summary judgment on that issue.\n\n¶ 43 B. Civil Penalties\n\n\n\n 16\n\fNo. 1-24-1435\n\n\n¶ 44 We next address Tobias’s contention that the court erred in granting summary judgment\n\nto the City on civil penalties, declaring them unwarranted. Subsection 11(j) of FOIA provides\n\nthat “[i]f the court determines that a public body willfully and intentionally failed to comply with\n\nthis Act, or otherwise acted in bad faith, the court shall also impose upon the public body a civil\n\npenalty of not less than $2,500 nor more than $5,000 for each occurrence.” 5 ILCS 140/11(j)\n\n(West 2022).\n\n¶ 45 Here, the trial court noted that the City did not produce the relevant records on June 2,\n\n2023, as required, but nevertheless concluded the delay was not a “deliberate, dishonest attempt\n\nto violate FOIA.” The court reasoned that the City attested it did not have the records on June 2,\n\nit “retrieved” them several months later, and it ultimately produced them as part of the summary\n\njudgment motion.\n\n¶ 46 Tobias maintains that, viewing the evidence in a light most favorable to him as plaintiff,\n\nthere remains an issue of material fact as to whether civil penalties are warranted,\n\nnotwithstanding the documents’ production. See Staake v. Department of Corrections, 2022 IL\n\nApp (4th) 210071, ¶ 32 (finding that although the requested FOIA documents were produced\n\nmid-litigation, the civil penalties claim survived); Martinez v. City of Springfield, 2022 IL App\n\n(4th) 210290, ¶ 43. He requests further proceedings to resolve this issue and an opportunity to\n\nfile a petition for civil penalties. We review the matter de novo. See Pielet v. Pielet, 2012 IL\n\n112064, ¶ 30; Staake, 2022 IL App (4th) 210071, ¶ 28; but see Thomas v. County of Cook, 2023\n\nIL App (1st) 211656, ¶ 16 (applying a manifest-weight-of-the-evidence standard of review);\n\nEdgar County Watchdogs v. Joliet Township, 2023 IL App (3d) 210520, ¶ 31 (same); Rock River\n\nTimes v. Rockford Public School District 205, 2012 IL App (2d) 110879, ¶ 48 (same).\n\n¶ 47 The Plain Language of Subsection 11(j) of FOIA\n\n\n\n 17\n\fNo. 1-24-1435\n\n\n¶ 48 As set forth earlier, when interpreting a statute such as FOIA’s subsection 11(j), we must\n\nhonor the legislature’s intent. The most reliable indicator of that intent is the statute’s language,\n\ngiven its plain and ordinary meaning. Special Prosecutor, 2019 IL 122949, ¶ 23. To reiterate, the\n\npublic body must have “willfully and intentionally failed to comply” with FOIA “or otherwise\n\nacted in bad faith.” 5 ILCS 140/11(j) (West 2022). A willful act is “done deliberately,” while an\n\nintentional act is “done by intention or design.” Merriam-Webster Online Dictionary,\n\nwww.merriam-webster.com/dictionary/willful (last visited Dec. 12, 2025)\n\n[https://perma.cc/6PY8-NRHA]; Merriam-Webster Online Dictionary, www.merriam-\n\nwebster.com/dictionary/intentional (last visited Dec. 12, 2025) [https://perma.cc/H6SJ-DPWE].\n\n“Bad faith” signifies a “lack of honesty in dealing with other people” and also “intentional\n\ndeception, dishonesty, or failure to meet an obligation or duty,” while “otherwise” is an adverb\n\nmodifying the verb “acted” and means “in a different way or manner.” Merriam-Webster Online\n\nDictionary, www.merriam-webster.com/dictionary/bad%20faith (last visited Dec. 12, 2025)\n\n[https://perma.cc/38R8-WQKT]; Merriam-Webster Online Dictionary, www.merriam-\n\nwebster.com/dictionary/otherwise (last visited Dec. 12, 2025) [https://perma.cc/3MR2-UFJ7].\n\n¶ 49 Thus, to warrant civil penalties, the City’s failure to comply with FOIA had to be done\n\ndeliberately and by intention/design or the City had to in some different way act dishonestly or\n\nfail to fulfill its statutory duty. But see Williams v. Bruscato, 2021 IL App (2d) 190971, ¶ 15\n\n(declining to honor the disjunctive, “or,” and concluding that civil penalties are warranted only\n\nwhen a public body “intentionally *** deliberately, by design, and with a dishonest purpose”\n\nfails to comply with FOIA (emphasis added)); Thomas, 2023 IL App (1st) 211656, ¶ 15 (cases\n\n\n\n\n 18\n\fNo. 1-24-1435\n\n\ncited therein following Williams). Ultimately, a plaintiff moving for civil penalties must establish\n\nthat they are warranted. 6 Williams, 2021 IL App (2d) 190971, ¶ 17.\n\n¶ 50 Subsection 11(j) of FOIA as Applied to this Case\n\n¶ 51 Here, the City does not dispute it failed to comply with the FOIA deadlines, but\n\nmaintains the record “is devoid” of evidence establishing intentional, willful, or bad faith\n\nconduct on its part. 7 It relies on Skelton’s affidavit. As stated, Skelton attested that he did not\n\nprovide Tobias the records by June 2, 2023, because he did not have them at that time. He further\n\nattested that he also did not provide the records when received “on [the] advice of counsel” and\n\ndue to the complaint Tobias filed. To reiterate, according to Skelton’s affidavit, he sought\n\nrecords from the city-issued cell phone of Guidice on May 26, 2023. As Guidice was not then\n\nenrolled in the archiving system, the search must have occurred at a later date, but Skelton\n\nattested he received responsive texts on July 13, 2023. Mayor Johnson’s city-issued cell phone\n\nwas searched on August 24, 2023, revealing no responsive texts. Skelton himself also searched\n\nMayor Johnson’s personal cell phone on August 11, 2023, locating various text messages\n\nbetween Mayor Johnson and Davis Gates. The City ultimately produced the public records on\n\nNovember 20, as part of its summary judgment motion.\n\n¶ 52 Tobias argues the City failed to offer a good-faith explanation for the delay. Relying on\n\nBlueStar Energy Services, Inc. v. Illinois Commerce Comm’n, 374 Ill. App. 3d 990 (2007), the\n\nCity responds that good faith must be presumed from Skelton’s affidavit. See City of Chicago v.\n\nJanssen Pharmaceuticals, Inc., 2017 IL App (1st) 150870, ¶¶ 26-29 (finding Bluestar\n\nsuperseded by statute). In Bluestar (relying on Carney v. United States Department of Justice, 19\n\n\n 6\n Nothing in section 11(j) precludes a court from sua sponte imposing a civil penalty on a public\nbody for failing to comply with FOIA. 5 ILCS 140/11(j) (West 2022).\n 7\n We note that in the City’s answer, it admitted that it had not produced the records and that it was\nalso aware of FOIA’s statutory deadlines.\n\n 19\n\fNo. 1-24-1435\n\n\nF.3d 807, 812 (2nd Cir. 1994)), the court observed that where affidavits supply facts that an\n\nagency has conducted a thorough search and give reasonably detailed explanations for why\n\nwithheld documents are exempt, they are adequate on their face to sustain the agency’s burden\n\nunder FOIA at summary judgment; further discovery is unnecessary. BlueStar, 374 Ill. App. 3d\n\nat 996-97. Bluestar asserted the “[a]ffidavits submitted by an agency are accorded a presumption\n\nof good faith.” (Internal quotation marks omitted.) Id. at 997.\n\n¶ 53 We find the City’s reliance on Bluestar misplaced where the City’s affidavit in this case\n\nreveals an admitted FOIA violation with the almost two-month search delay and a sixth-month\n\ndelay in records production. Also, as explained immediately below, all of the initial exemptions\n\nwere abandoned. The affidavit thus was not “adequate” on its face in that regard, and this rebuts\n\nany presumption of good faith. Dovetailing with this point, the affidavit was not reasonably\n\ndetailed. See id. at 996-97; see also Kelly, 2019 IL App (1st) 170780, ¶ 24 (noting, affidavits that\n\nare conclusory or overly vague or sweeping are insufficient). Skelton’s statement that he did not\n\nhave the documents on June 2, 2023, when due, offers no explanation for why the cell phone\n\nsearches were conducted months later; it could be an innocent, perfectly justifiable explanation,\n\nor not. However, summary judgment should be denied when reasonable people can “draw\n\ndivergent inferences from undisputed facts.” Outboard Marine Corp. v. Liberty Mutual\n\nInsurance Co., 154 Ill. 2d 90, 102 (1992). At the very least, this delay raises a question of fact\n\nregarding whether the City’s violation was in bad faith. Bad faith encompasses dishonesty and a\n\nfailure to meet an obligation with due diligence. 8 See Smith v. Airoom, Inc., 114 Ill. 2d 209, 222\n\n\n 8\n We agree with the City that a delay, by itself, does not constitute grounds for a civil penalty\nunder subsection 11(j). The legislature expressly acknowledged that there could be some delays, with the\nconsequences held against the public body. See 5 ILCS 140/3 (West 2022) (noting, “A public body that\nfails to respond to a request within the requisite periods *** but thereafter provides the requester with\ncopies of the requested public records may not impose a fee for such copies. A public body that fails to\n\n\n 20\n\fNo. 1-24-1435\n\n\n(1986) (noting, “due diligence” requires a party to have “a reasonable excuse for failing to act\n\nwithin the appropriate time”).\n\n¶ 54 Pointing to Skelton’s affidavit, the City also cites the ongoing litigation as reason for the\n\ndelay in handing over records. The City writes, “it was not ‘bad faith’ for the City to take the\n\ntime to review the matter and follow standard litigation procedures” or “consider its litigation\n\nstrategy.” The City adds this “does not support an inference that it deliberately violated FOIA.”\n\nWe reject this position for a number of reasons.\n\n¶ 55 First, Skelton’s affidavit does not address litigation strategy. Second, and most notably,\n\nthe City filed its answer to Tobias’s June complaint on August 4, 2023, denying the claim that it\n\nhad failed to adequately search for responsive records. That same date, the City also filed\n\naffirmative defenses asserting the records were exempt and, accordingly, Mayor Johnson’s text\n\nmessages “were properly withheld.” See supra ¶ 7. Yet, Skelton did not search Mayor Johnson’s\n\ncity-issued or personal cell phone until mid-to-late August, which was after the City filed its\n\nanswer and affirmative defenses. The City admitted as much during oral arguments in the trial\n\ncourt, with its lawyer stating, “I did not have the texts at the time of my answer.”\n\n¶ 56 “Standard litigation procedures” do not include claiming FOIA exemptions without\n\nhaving obtained and reviewed the underlying records at issue. 9 That practice is contrary to the\n\n\n\n\nrespond to a request received may not treat the request as unduly burdensome under subsection (g).”).\nHowever, as set forth, it is not clear whether the delay in this case was willful, intentional, or otherwise in\nbad faith, which is prohibited.\n 9\n The City justifies its conduct, arguing that its appearance and answer were due August 6, 2023,\nwithin 30 days of service and before Skelton could effectuate the searches of Mayor Johnson’s cell\nphones. In so arguing, the City relies on Illinois Supreme Court Rule 181(a) (eff. July 17, 2020), but that\nrule applies only when the summons expressly requires an appearance within 30 days. The summons in\nthis case was silent in that regard. Likewise, after an appearance under Rule 181(a), the trial court then\ndirects the timeline for the answer or another appropriate motion. In other words, Rule 181 does not\nrequire a defendant to file affirmative defenses without first reviewing the underlying documents.\n\n\n 21\n\fNo. 1-24-1435\n\n\nletter and spirit of FOIA. See 5 ILCS 140/7 (West 2022) (requiring a public record, with any\n\nelected redactions due to exemptions, to be available for inspection and copying); Id. § 9(b)\n\n(requiring a denial claiming an exemption to include “a detailed factual basis and a citation to\n\nsupporting legal authority”); Special Prosecutor, 2019 IL 122949, ¶ 25 (“FOIA’s exceptions to\n\ndisclosure are to be construed narrowly so as not to defeat the intended statutory purpose.”). To\n\nhammer our point, the City could not provide a detailed factual basis for an exemption because it\n\nhad not read all the requested records when it claimed the exemption.\n\n¶ 57 Third, the “litigation” defense also does not hold water where the City later abandoned all\n\nof the claimed exemptions. 10 Except for some personal communications from Mayor Johnson’s\n\nown cell phone, which were redacted because they did not pertain to the transaction of public\n\nbusiness, all of the requested records were required to be produced. See 5 ILCS 140/1.2 (West\n\n2022) (noting that a public body’s records “are presumed to be open to inspection or copying”).\n\nFourth, the City has not adequately explained why it did not simply send the requested records to\n\nTobias via its attorney around the time the devices were searched. See Green, 2022 IL 127229,\n\n¶ 37 (under FOIA, the government must provide public records as expediently and efficiently as\n\npossible). We further reject the City’s argument that it attached the documents to its summary\n\n\n\n Second, that the litigation dates outpaced the City’s search dates does not eliminate the question\nof why the search dates were delayed initially. As Tobias observes, FOIA requires a public body to\ncomply with a request, at most, in 10 business days. 5 ILCS 140/3(d) (West 2022). Likewise, the City\ncould have easily sought a continuance to file its answer and affirmative defenses but chose not to.\n Both parties also dispute whether the City’s attorney violated Illinois Supreme Court Rule 137\n(eff. Jan. 1, 2018), which provides that an attorney’s signature on a pleading signifies it is “well grounded\nin fact” and “warranted by existing law” after reasonable inquiry and not filed for “any improper\npurpose,” such as “unnecessary delay or needless increase in the cost of litigation.” We need not enter\ninto this fray, as we are tasked only with deciding whether the record, when read in a light most favorable\nto the nonmoving party, creates a question of fact as to whether the City was willful and intentional in\nviolating FOIA or otherwise acted in bad faith.\n 10\n In its written order, the trial court noted that the City had not claimed a statutory exemption for\nthe text messages from Mayor Johnson’s personal cell phone but, rather, claimed the redacted material\ndid not qualify as a public record under FOIA. See 5 ILCS 140/2(c) (West 2022).\n\n 22\n\fNo. 1-24-1435\n\n\njudgment motion, instead of producing them sometime beforehand during litigation, because\n\nTobias did not submit a discovery request for evidence. Tobias responds, and we agree, that this\n\nargument fails where the “production of responsive records in a FOIA case is not ‘evidence,’ ”\n\nbut “the very relief being sought.” The City’s line of reasoning also contradicts its arguments,\n\ndiscussed below, that Tobias is not entitled to discovery on civil penalties.\n\n¶ 58 Last, the records consisted of only four pages with a single redaction, which raises the\n\nquestion of why the City would need “time to consider its litigation strategy,” as it now claims.\n\nThat does not appear to be an acceptable excuse. The foregoing smacks of dishonesty and a lack\n\nof due diligence, which could amount to bad faith. See Smith, 114 Ill. 2d at 222 (noting, in\n\ndetermining the reasonableness of an excuse, all circumstances must be considered, including the\n\nconduct of the litigants and their attorneys); cf. Edgar County Watchdogs, 2023 IL App (3d)\n\n210520, ¶¶ 33, 35 (affirming the denial of a civil penalties petition, where the township\n\nreasonably interpreted the plaintiff’s FOIA request as onerous and sought to recoup costs that,\n\nalthough not statutorily supported, did not reflect bad faith).\n\n¶ 59 Staake is instructive. There, this court concluded that questions of fact remained as to\n\nwhether the Department of Corrections (DOC), in bad faith, withheld records sought by an\n\ninmate under FOIA. Staake, 2022 IL App (4th) 210071, ¶ 51. We noted that the DOC claimed\n\nexemptions without offering a detailed factual basis and only produced the redacted records after\n\nthe inmate initiated litigation. Id. ¶¶ 48-49. The DOC changed its reasoning for withholding a\n\nrecord when it was clear the alleged exemption did not save the DOC from producing the\n\ndocument. Id. ¶ 50. This court, accordingly, reversed the trial court’s granting of summary\n\njudgment to the DOC and remanded for further proceedings as to civil penalties. Id. ¶ 58.\n\n\n\n\n 23\n\fNo. 1-24-1435\n\n\n¶ 60 As in Staake, here, the process of withholding documents, the significant delay, and the\n\nmid-litigation production of records warrant further scrutiny. 11 Questions of fact remain\n\nregarding whether the City acted in bad faith, if not intentionally and willfully. Based on the\n\nforegoing, the City failed to fulfill its burden of persuasion and production as the moving party.\n\nSee Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 688-89 (2000). Even assuming\n\nthe City did fulfill its burden, thus shifting it to the nonmovant, Tobias has pointed to facts in the\n\npleadings that would arguably entitle him to civil penalties. See id. at 689 (noting that a party\n\nopposing summary judgment may rely solely upon the pleadings to create a question of material\n\nfact).\n\n¶ 61 Relief Requested\n\n¶ 62 Tobias requests that we remand the matter for further discovery. Initially, the City argues\n\nthat Tobias forfeited this issue by failing to file an Illinois Supreme Court Rule 191(b) (Jan. 4,\n\n2013) affidavit seeking discovery. See Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill. App. 3d\n\n249, 261 (2010) (finding the plaintiff forfeited the argument that granting the defendant summary\n\njudgment was premature, where she failed to seek a continuance and file a Rule 191(b) affidavit\n\nfor additional discovery).\n\n¶ 63 Here, however, the City moved for summary judgment as to civil penalties by pointing\n\nout the absence of evidence supporting Tobias’s assertion of penalties in his complaint. See\n\nIllinois State Bar Ass’n Mutual Insurance Co. v. Mondo, 392 Ill. App. 3d 1032, 1036 (2009); see\n\nalso Jiotis v. Burr Ridge Park District, 2014 IL App (2d) 121293, ¶ 25 (noting that, in a Celotex-\n\ntype motion, the defendant asserts the nonmovant’s evidence is insufficient to avoid judgment as\n\n\n Whether litigation prompted the records’ production is also a relevant inquiry when considering\n 11\n\nwhether to award attorney fees. See Uptown People’s Law Center, 2014 IL App (1st) 130161, ¶ 20\n(noting, successful plaintiffs may obtain attorney fees regardless of the extent to which they prevail,\nhowever slight); see also Martinez, 2022 IL App (4th) 210290, ¶¶ 43, 46.\n\n 24\n\fNo. 1-24-1435\n\n\na matter of law); Williams, 316 Ill. App. 3d at 688 (identifying the “Celotex test”). A plaintiff is\n\nnot required to comply with Rule 191(b) where, as here, a defendant files a Celotex-type\n\nsummary judgment motion. See Jiotis, 2014 IL App (2d) 121293, ¶ 26; Williams, 316 Ill. App.\n\n3d at 692. “Although a plaintiff must comply with Rule 191(b) when a defendant has\n\naffirmatively shown that it is entitled to judgment, it is quite another matter to require such\n\ncompliance when defendant, at an early stage, merely suggests that plaintiff is unable to prove\n\nhis case.” Williams, 316 Ill. App. 3d at 692.\n\n¶ 64 The City also effectively argues that Tobias, by pursuing discovery, is improperly filing\n\nan “independent claim for civil penalties.” We reject this assertion, even if the City forfeited it\n\nbelow, as Tobias argues. See Finko v. City of Chicago Department of Administrative Hearings,\n\n2016 IL App (1st) 152888, ¶ 24 (“Failure to raise an issue before the trial court forfeits review of\n\nthat issue on appeal.”). Tobias’s pursuit of penalties is directly tied to his declaratory judgment\n\naction filed against the City for FOIA violations. See In re Marriage of Best, 228 Ill. 2d 107, 117\n\n(2008) (discussing declaratory actions). As stated, notwithstanding the documents’ mid-litigation\n\nproduction, which satisfied part of Tobias’s requested relief, civil penalties still may be\n\nwarranted for the violations. See Staake, 2022 IL App (4th) 210071, ¶¶ 31-32. The remedy\n\navailable is entirely dependent on subsection 11(j). In his complaint, Tobias requested as relief\n\nthe civil penalties under 11(j), and he also requested a further investigation in response to the\n\nCity’s summary judgment motion. Even the City’s case on which it relied, BlueStar, 374 Ill.\n\nApp. 3d at 996-97, notes that discovery is a natural progression following summary judgment in\n\nFOIA cases. Accordingly, we reject the City’s argument challenging Tobias’s request for\n\ndiscovery.\n\n\n\n\n 25\n\fNo. 1-24-1435\n\n\n¶ 65 We similarly reject the City’s claim that an evidentiary hearing would be inappropriate.\n\nSee, e.g., Hites, 2016 IL App (2d) 150836, ¶¶ 14-20 (trial court held an evidentiary hearing on\n\nthe defendant public body’s motion to dismiss). The City merely rehashes arguments regarding\n\nits summary judgment motion that we have already rejected. However, given that subsection\n\n11(j) permits the circuit court to impose only at most $5,000 for each violation, we expect the\n\nparties to be expeditious in resolving the civil penalties matter. See 5 ILCS 140/11(j) (West\n\n2022). A short evidentiary hearing would seem to be the more suitable route.\n\n¶ 66 III. CONCLUSION\n\n¶ 67 Based on the foregoing, we affirm the granting of summary judgment in favor of the City\n\nin part and reverse the granting of the summary judgment in part, as to the matter of civil\n\npenalties. We remand for further proceedings consistent with this decision on whether civil\n\npenalties are warranted.\n\n¶ 68 Affirmed in part and reversed in part; cause remanded.\n\n\n\n\n 26\n\f"} {"dedup_key":"2026 IL App (1st) 250205","dedup_key_type":"neutral_citation","neutral_citation":"2026 IL App (1st) 250205","case_name":"Lucy Parsons Labs v. The Chicago Police Department","court_level":"Appellate","appellate_district":"1st","year":2026,"county":"Cook","appellate_docket":"1-25-0205","circuit_docket":"2023 CH 01181","published":1,"authoring_justice":"Reyes","statute":["FOIA"],"exemptions_cited":[],"public_body":"Chicago Police Department","requesting_party":"Lucy Parsons Labs","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The appellate court reversed the circuit court's denial of civil penalties under FOIA, finding that the Chicago Police Department's justifications for its significant delay in responding to the records request were insufficient. The case was remanded for the circuit court to determine the appropriate amount of civil penalties to be assessed against the Department.","best_text_source":"Court Opinions - FOIA/Lucy Parsons Labs v. Chicago Police Dept 2026 IL App (1st) 250205.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:11:04.283042","site_category":"FOIA Response Process","date_decided":"2026-06-30","site_url":"/cases/2026%20IL%20App%20(1st)%20250205/","text_url":"/case-text/2026%20IL%20App%20(1st)%20250205.txt","full_text":" 2026 IL App (1st) 250205\n Third Division\n June 30, 2026\n No. 1-25-0205\n\n\n\n LUCY PARSONS LABS, ) Appeal from the Circuit Court\n ) of Cook County, Chancery\n Plaintiff-Appellant, ) Division.\n )\n v. ) No. 2023 CH 01181\n )\n THE CHICAGO POLICE DEPARTMENT, ) The Honorable\n ) Eve M. Reilly,\n Defendant-Appellee. ) Judge Presiding.\n\n ______________________________________________________________________________\n\n JUSTICE REYES delivered the judgment of the court, with opinion.\n Presiding Justice Martin and Justice Lampkin concurred in the judgment and\n opinion.\n\n OPINION\n\n¶1 In a Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2022)) inquiry\n\n submitted to the Chicago Police Department (Department) in 2022, plaintiff Lucy Parsons Labs\n\n requested e-mail communications which contained the phrase “Criminal Enterprise\n\n Information System” or “CEIS” (CEIS) from a specific officer corresponding to an 11-month\n\n period. The Department subsequently failed to respond to the request after the five-day\n\n statutory response period and two five-day extensions had lapsed. After more than two months\n\n had passed since submitting the initial request, during which no responsive records were\n\n produced or FOIA exemptions claimed, plaintiff filed a complaint against the Department for\n\n declaratory and injunctive relief, attorney fees and costs, and civil penalties. See 5 ILCS\n\n 140/11(a), (d), (i), (j) (West 2022). An agreed order was entered several months after the\n\n litigation commenced compelling the Department to produce the records, which it then\n\f No. 1-25-0205\n\n\n produced. Plaintiff then filed a petition for attorney fees and costs and civil penalties, after\n\n which the circuit court conducted an evidentiary hearing.\n\n¶2 Based on the evidence produced at the hearing and the standards established in\n\n Williams v. Bruscato, 2021 IL App (2d) 190971, ¶ 15, and Thomas v. County of Cook, 2023\n\n IL App (1st) 211656, ¶¶ 15-16, the circuit court ruled that, although the Department had\n\n knowledge of the statute’s requirements and its own violation of those requirements, plaintiff\n\n had not met the burden for civil penalties as there was not a sufficient showing of the\n\n Department’s bad faith. For the reasons set forth below, we reverse the circuit court’s denial\n\n of civil penalties and remand the case for a determination of appropriate penalties.\n\n¶3 BACKGROUND\n\n¶4 Plaintiff sent an e-mailed FOIA request to the Department on November 28, 2022,\n\n requesting “[a]ll email communications sent or received, including being CCed or BCCed, by\n\n Michael Milstein between 1/1/2022 and 11/20/22 which include the phrase, ‘Criminal\n\n Enterprise Information System’ or ‘CEIS.’ ” In the same e-mail, plaintiff requested an advance\n\n estimate of fees and electronic delivery of the responsive records “within 5 business days, as\n\n the statute requires.”\n\n¶5 The Department sent a short response on November 29, 2022, acknowledging receipt\n\n of plaintiff’s request and assigning a reference number to the request. The Department wrote\n\n again on December 6, 2022, to request a five-day extension, outlining the following reasons\n\n for the delay:\n\n “1. The requested records are stored in whole or in part at other locations other\n\n than the office having charge of the requested records.\n\n\n\n\n 2\n\f No. 1-25-0205\n\n\n 2. The requested records require examination and evaluation by personnel having\n\n the necessary competence and discretion to determine if they are exempt from\n\n disclosure or should be revealed only with the appropriate deletions.\n\n 3. There is a need for consultation, which shall be conducted with all practicable\n\n speed, with another public body or among two or more components of any public body\n\n having a substantial interest in the determination or in the subject matter of the request.”\n\n The e-mail further stated a response would be sent “on or before December 13, 2022.”\n\n¶6 On the slated response date, December 13, 2022, the Department requested a second\n\n five-day extension “due [to] issues with our portal and a back log of FOIA request[s].” Then,\n\n on December 20, 2022, the Department sent an e-mail to plaintiff which stated, “I received the\n\n records and will start the process of reviewing and redacting them. I will send you a response\n\n within 5 business days.” On December 28, 2022, the Department sent another e-mail which\n\n stated that plaintiff’s request was pending review and approval.\n\n¶7 Plaintiff filed a complaint in the circuit court on February 7, 2023, alleging violations\n\n of FOIA. The complaint cited the legislative purpose undergirding Illinois’s FOIA law (see 5\n\n ILCS 140/1 (West 2022)), as well as the requirement that the public bodies which claim\n\n exemptions bear the burden of proof by clear and convincing evidence that the information\n\n requested of them falls under an established exemption (see id. §§ 1-1.2). In the complaint,\n\n plaintiff acknowledged that the original December 6, 2022, e-mail from the Department and\n\n the first requested five-day extension were compliant with FOIA section 3.5(a). See id. § 3.5(a)\n\n (“Upon receiving a request for a public record, the Freedom of Information officer shall ***\n\n compute the day on which the period for response will expire and make a notation of that date\n\n on the written request.”). After receiving the section 3.5(a)-compliant e-mail, though, plaintiff\n\n\n 3\n\f No. 1-25-0205\n\n\n stated that it had not consented to any further extensions, and such consent was required to\n\n make any further extension valid under FOIA. See id. § 3(e) (“If the requester and the public\n\n body agree to extend the period for compliance, a failure by the public body to comply with\n\n any previous deadlines shall not be treated as a denial of the request for the records.”).\n\n¶8 The complaint further alleged that the Department had both failed to produce any\n\n responsive records as of the date of the filing on February 7, 2023, and to produce a substantive\n\n response pursuant to sections 3 and 9 of FOIA. See id. §§ 3, 9. The complaint alleged that the\n\n Department had “been aware of FOIA’s statutory deadlines,” that it was “in violation of those\n\n deadlines” since November 28, 2022, and that “complying with FOIA’s deadlines is a\n\n fundamental obligation” of the agency. The complaint also alleged that the Department had\n\n been the subject of various prior lawsuits for failure to comply with FOIA deadlines. Due to\n\n its knowing violation of the statutory response deadline, plaintiff alleged, the Department had\n\n willfully and intentionally, or otherwise in bad faith, failed to comply with FOIA. Plaintiff\n\n sought declaratory and injunctive relief, as well as civil penalties pursuant to FOIA section\n\n 11(j). See id. § 11(j).\n\n¶9 In its answer filed on April 5, 2023, and amended on June 14, 2023, the Department\n\n denied its failure to comply with FOIA’s deadlines, its awareness of the violations, and the\n\n notion that compliance with FOIA deadlines was a fundamental obligation of the agency. The\n\n Department claimed that some of the requested records “may be” exempt pursuant to FOIA’s\n\n enumerated exemptions in section 7, including the private information exemption under\n\n 7(1)(b). See id. § 7(1)(b). The Department also claimed FOIA exemptions 7(1)(a) (id. § 7(1)(a)\n\n (“Information specifically prohibited from disclosure by federal or State law or rules and\n\n regulations implementing federal or State law.”)), and 7(1)(f) (id. § 7(1)(f) (“Preliminary\n\n\n 4\n\f No. 1-25-0205\n\n\n drafts, notes, recommendations, memoranda and other records in which opinions are\n\n expressed, or policies or actions are formulated”)).\n\n¶ 10 On June 28, 2023, plaintiff moved for partial summary judgment and for an index of\n\n withheld records pursuant to FOIA section 11(e). (Id. § 11(e) (“On motion of the plaintiff,\n\n prior to or after in camera inspection, the court shall order the public body to provide an index\n\n of the records to which access has been denied,” including “[a] description of the nature or\n\n contents of each document withheld, or each deletion” and “[a] statement of the exemption or\n\n exemptions claimed for each such deletion or withheld document”). On July 3, 2023, the court\n\n entered an agreed order requiring the Department to produce the responsive records on or\n\n before July 10, 2023.\n\n¶ 11 The Department produced the records on July 13, 2023. Plaintiff filed a petition for\n\n fees and costs on October 10, 2023, in which it also advanced its civil penalties argument,\n\n arguing that the Department’s violation was willful and intentional and that it had acted in bad\n\n faith. Plaintiff emphasized the Department’s seven-month delay in producing the responsive\n\n records, including several months into the timeline of the lawsuit underlying this appeal. The\n\n Department filed a cross-motion for partial summary judgment and response to plaintiff’s\n\n petition for fees and costs on November 13, 2023, noting that there was no provision in the\n\n Code of Civil Procedure which permitted plaintiff to combine its fee petition and civil penalties\n\n arguments into the same motion. The Department further denied plaintiff’s allegations of bad\n\n faith, arguing that Williams requires a showing of deliberate dishonesty on the part of the public\n\n body to prove bad faith warranting the imposition of civil penalties. See Williams, 2021 IL\n\n App (2d) 190971, ¶ 20. In its reply, plaintiff argued it had satisfied its burden of proving bad\n\n faith by demonstrating the Department’s “regular violations of the deadlines” and revealing\n\n\n 5\n\f No. 1-25-0205\n\n\n through a Department FOIA officer’s testimony “that [the Department] was aware of the\n\n deadlines, the requirement to comply with them, and its ongoing failure to do so.” To the extent\n\n that further evidence was necessary, plaintiff argued, the court should conduct an evidentiary\n\n hearing on the matter.\n\n¶ 12 The court heard arguments on plaintiff’s fee petition and its request for civil penalties\n\n on February 1, 2024. On the subject of civil penalties, the Department maintained that plaintiff\n\n was required to demonstrate that it had failed to comply with FOIA willfully, intentionally,\n\n and in bad faith, and that it had not satisfied that burden. Plaintiff argued that the case law\n\n allowed for circumstantial evidence to prove intent of a willful violation, noting that a FOIA\n\n requester is “unlikely to get direct evidence” as “[n]o one from CPD is going to come into\n\n court and say, yes, I willfully violated the statute, I did it deliberately, by design, and with a\n\n dishonest purpose.” Additionally, plaintiff argued that the Department failed to comply even\n\n after it was served with the complaint in the current litigation and thus had undeniable\n\n knowledge of its purported violation. It was not until almost three months thereafter that the\n\n Department finally produced the responsive records, and it cited no acceptable explanation or\n\n exemption to excuse the delay.\n\n¶ 13 In response, the Department again emphasized that it was plaintiff’s burden to prove\n\n that its violation was willful, intentional, and in bad faith—which it described as “a very high\n\n bar” to surmount—and noted that plaintiff had elected not to pursue discovery to uncover any\n\n potential evidence of intentionality. The court interjected, “Well, there’s late, and then there’s\n\n late, right?” The Department responded, “This isn’t something where time is of the essence.\n\n We didn’t see a plaintiff here who filed on the sixth business day. *** [Plaintiff] brought this\n\n to our attention, that they still wanted this, and they weren’t accepting the constructive denial\n\n\n 6\n\f No. 1-25-0205\n\n\n *** some amount of time after.” The court noted in response that, while the burden of proof\n\n rested on the plaintiff, the Department had offered “nothing” to justify its violation. Plaintiff\n\n contended that there was no statutory basis for the Department’s argument that “they can\n\n ignore a request, and then say, well we constructively denied it and you have to tell us that you\n\n still want your documents after we ignored you.” Plaintiff argued, “The one thing they can’t\n\n do, and the one thing that’s completely contrary to the purpose of the statute, which is prompt\n\n disclosure of public records so that we can hold the government accountable, is they can’t just\n\n ignore it, and *** elect not to produce records for seven months.” It is sufficient to infer bad\n\n faith, plaintiff argued, where, as here, there is evidence proving the Department’s knowledge\n\n of the statutory deadlines; where the Department’s response is “significantly late” and several\n\n months subsequent to its receiving service of a legal complaint for its violation; and where\n\n there is no justification, “either offered or even fathomable” for its delay.\n\n¶ 14 In a February 2, 2024, order, the court denied plaintiff’s request for civil penalties as\n\n improperly raised in the fee petition, and granted its petition for attorney fees, subtracting the\n\n fees accrued in pursuit of the civil penalties claim. On February 27, 2024, plaintiff moved for\n\n an evidentiary hearing on the civil penalties claim. The circuit court entered an agreed order\n\n on April 25, 2024, setting the matter for an evidentiary hearing.\n\n¶ 15 The circuit court conducted the evidentiary hearing on June 27, 2024. Plaintiff called\n\n its first witness, Officer Pedro Rodriguez (Officer Rodriguez), a retired police officer and\n\n FOIA specialist with the Department for nearly five years. Officer Rodriguez was presented\n\n with an exhibit of plaintiff’s original FOIA request, and he testified that he was the officer\n\n responsible for processing the request at the time of its receipt. Officer Rodriguez testified to\n\n the general nature of his training, and that his response to plaintiff’s FOIA request was\n\n\n 7\n\f No. 1-25-0205\n\n\n consistent with that training. He also testified that he understood at the time that responses to\n\n FOIA requests were due in five business days, which could be extended by an additional five\n\n business days in certain circumstances, and that information regarding those deadlines was\n\n readily available to him on the GovQA portal that FOIA officers used to track requests. Officer\n\n Rodriguez admitted that, as of November 29, 2022, there were at least some other FOIA\n\n requests for which he was responsible that did not receive the required response by the statutory\n\n deadline. Reviewing the December 13, 2022, e-mail exchange in the instant case, in which he\n\n had requested an additional five day extension due to portal issues and a backlog of requests,\n\n Officer Rodriguez testified that he had used the same language in response to other FOIA\n\n requests and that he had drafted the language himself. He testified that he understood that the\n\n response deadline for plaintiff’s request was December 13, 2022, and that the request was\n\n overdue by the time he sent the next follow-up e-mail on December 20, 2022. Officer\n\n Rodriguez testified that he had possession of the responsive records at that time, and that he\n\n could not recall or identify anything preventing him from producing the records on that date.\n\n¶ 16 Officer Rodriguez further testified that he had completed his processing, review, and\n\n redaction of the records as of December 28, 2022, but the records at that time still required\n\n review by the supervising sergeants and legal affairs division at the Department. Although\n\n Officer Rodriguez notified plaintiff at that time that the request was “currently pending to be\n\n reviewed and approved,” he testified that he neglected to initiate the review and approval\n\n process, stating, “I erred and did not send it to the sergeant when I thought I sent it to the\n\n sergeant for review.” Officer Rodriguez testified that it was his belief on December 28, 2022,\n\n when he sent the message to plaintiff conveying pending approval, that he had in fact initiated\n\n the review process, and it was not until he was notified of the filed complaint in the lawsuit in\n\n\n 8\n\f No. 1-25-0205\n\n\n March 2023 that he realized he had failed to do so. Despite realizing his error and\n\n understanding the urgency of the matter once the lawsuit had been filed, Officer Rodriguez\n\n could not recall when he ultimately forwarded the proposed response onto his sergeants for\n\n approval, estimating that it was approximately April 2023. He did not have an explanation as\n\n to why it took until July 2023 for the records to be produced.\n\n¶ 17 On redirect examination, Officer Rodriguez testified that, according to his\n\n understanding of FOIA law, there was nothing in the statute which permitted a public body to\n\n extend its response time beyond the total 10 business days allowed in the statute to\n\n accommodate internal policies requiring additional review processes. Officer Rodriguez\n\n testified that the CEIS system about which plaintiff had directed its request was “still in *** a\n\n draft mode and it wasn’t ready to be released,” “[s]o it’s not just simple emails.” As such,\n\n Officer Rodriguez testified that he most likely had spoken to someone in the Bureau of Counter\n\n Terrorism to discuss what was “unreleasable and releasable” from the request, and would have\n\n done so within the five-day extension period.\n\n¶ 18 Plaintiff then introduced Sergeant Peter Edwards (Sergeant Edwards), the commanding\n\n officer at the Department’s FOIA unit who had held the position since January 2019. Sergeant\n\n Edwards testified that he was not familiar with the e-mails that Officer Rodriguez had sent in\n\n response to plaintiff’s request until after the lawsuit had been filed. Accordingly, Sergeant\n\n Edwards testified that at some point before April 5, 2023, he became aware that the Department\n\n had yet to appropriately respond to the request and notified the assigned FOIA officer. Sergeant\n\n Edwards acknowledged that, even if the Department had first received the request on April 5,\n\n 2023, instead of November 28, 2022, when it actually received the request, the maximum\n\n amount of time it would be allotted for a response would be 10 business days. When asked if\n\n\n 9\n\f No. 1-25-0205\n\n\n he had an explanation for the Department’s delay, Sergeant Edwards answered, “The records\n\n needed to be reviewed.” He also acknowledged that the statute did not provide for such a cause\n\n for delay due to review, absent written consent from the requesting party, which was not\n\n obtained here. As an alternative explanation, Sergeant Edwards testified that “the program that\n\n [plaintiff was] asking about for those e-mails, those e-mails may have contained draft records\n\n or communications that were attorney-client privilege.” He testified that he had not reviewed\n\n the responsive records, however, and acknowledged that the presence of potential attorney-\n\n client privileged information in some portion of a document does not preclude the production\n\n of the remainder of that document.\n\n¶ 19 Sergeant Edwards further testified that there was a backlog of FOIA requests at the\n\n Department as of December 13, 2022, and that there were simultaneous issues with the\n\n Department’s portal system, where “we weren’t getting requests or we weren’t able to upload\n\n PDF records into GovQA in order to send them.” He testified that he reviewed the request\n\n backlog on a monthly basis, and that there were roughly 500 overdue FOIA requests as of\n\n December 13, 2022. Sergeant Edwards also testified that he was aware of lawsuits filed against\n\n the Department as of December 13, 2022, concerning delays in its responses to FOIA requests.\n\n¶ 20 On cross-examination, Sergeant Edwards testified that the Department typically\n\n handles “about 96 percent” of requests within “a small time frame.” He testified that responsive\n\n records often contain information regarding witnesses, innocent parties, and suspects that “can\n\n compromise investigations or endanger life and safety of individuals” if released improperly.\n\n On redirect examination, Sergeant Edwards acknowledged that nothing in the FOIA statute\n\n condones only 96% as opposed to full compliance with the statutory deadlines.\n\n\n\n\n 10\n\f No. 1-25-0205\n\n\n¶ 21 In closing, plaintiff argued that, even setting aside the period preceding April 2023\n\n before which Officer Rodriguez became aware of his mistake in neglecting to forward the\n\n response to his sergeants for internal review, there were approximately three months during\n\n which the Department was aware of its own noncompliance and still failed to produce the\n\n required response or records. Plaintiff argued that the Department “knew what the deadlines\n\n were[,] they knew [they] weren’t complying with them, and they did it anyway. That seems to\n\n be a classic example of bad faith.”\n\n¶ 22 The Department countered that, according to Thomas, 2023 IL App (1st) 211656, ¶ 15,\n\n “to warrant the imposition of civil penalties under Section 11 J, the public body not only must\n\n have *** intentionally failed to comply with the FOIA, but must have done so deliberately[,]\n\n by design[,] and with a dishonest purpose.” The Department emphasized the conjunctive “and”\n\n in this standard, and that the burden of proof lies with the plaintiff. “[T]here was nothing here\n\n today that said this system was designed to violate FOIA,” the Department continued. “You\n\n didn’t hear anything about there was a dishonest purpose. The only thing you heard here was\n\n that they were trying to get it right. *** [T]hese are civil servants who are acting in good faith.”\n\n¶ 23 The court issued an order requesting that the parties submit post-hearing briefs.\n\n Plaintiff’s brief, filed on August 5, 2024, articulated the standards established in Williams and\n\n reaffirmed in Thomas, but disputed the holdings “because they are based on the incorrect\n\n conclusion that a violation must be willful, intentional and in bad faith, where the statute\n\n plainly says ‘or’ in bad faith, and because the statute must be interpreted liberally in favor of\n\n promoting transparency.” (Emphasis in original.). Plaintiff also asserted that the Williams and\n\n Thomas decisions run afoul of Rock River Times v. Rockford Public School District 205, 2012\n\n IL App (2d) 110879, ¶¶ 52, 55, which required civil penalties for a public body that knew of\n\n\n 11\n\f No. 1-25-0205\n\n\n its violation and continued the violation anyway. Furthermore, plaintiff argued, the\n\n Department’s conduct still rose to the level of the “deliberately, by design, and with a dishonest\n\n purpose” standard from Williams, even if the legal concept of “bad faith” under this standard\n\n had been wrongly narrowed in its view through the Williams and Thomas decisions.\n\n¶ 24 The Department’s brief maintained that plaintiff failed to satisfy the standard from\n\n Williams and Thomas and emphasized that its delay in response to plaintiff’s initial request\n\n was due in part to Officer Rodriguez’s inadvertent mistake and the “temporary\n\n malfunctioning” of the Department’s software rather than any “deliberate conspiracy of bad\n\n faith.” Instead, the Department argued, it “had a good faith basis to review the requested\n\n records for potentially privileged, exempt, and confidential information prior to public\n\n disclosure.” The Department noted that it had never disobeyed a substantive court order to\n\n produce the responsive records, and instead voluntarily produced the records on its own accord\n\n after the court entered its agreed order. The Department maintained it “was stuck between a\n\n rock (a late FOIA request), and a hard place (risking improper public disclosure of deliberative,\n\n confidential, or privileged information),” and that its delay was owing to good faith reasons\n\n including Officer Rodriguez’s need to confer with the Bureau of Counter Terrorism; the CEIS\n\n system’s involvement in a “deliberative process” due to civil litigation which could make some\n\n communications subject to attorney-client privilege; and the potential of the records containing\n\n information regarding witnesses, suspects, and innocent parties. Accordingly, the Department\n\n argued, its delay did not represent a willful and intentional violation of FOIA, and plaintiff had\n\n failed to demonstrate bad faith.\n\n¶ 25 Following this briefing, the circuit court issued an oral ruling on January 9, 2025, in\n\n which it articulated the section 11(j) standard as willful and intentional failure to comply with\n\n\n 12\n\f No. 1-25-0205\n\n\n FOIA or otherwise acting in bad faith, which is not only an intentional failure to comply but\n\n also done “deliberately[,] by design[,] with a dishonest purpose.” The court acknowledged that\n\n Officer Rodriguez had provided no explanation for the Department’s additional three-month\n\n delay “after he became aware of the mistake” in April 2023. It further noted that although\n\n Sergeant Edwards had testified that some of the responsive e-mails may have been privileged,\n\n he had never reviewed the records to have any certainty as to that fact, and he acknowledged\n\n that such an exemption would not have extended to all of the records responsive to plaintiff’s\n\n request. The court found that Officer Rodriguez’s initial failure to respond was a mistake, and\n\n there was no willful or intentional delay prior to April 2023. As to the continued violation\n\n thereafter, however, the court found the Department’s delay amounted to willful and\n\n intentional conduct. The court stated, “[K]nowing the statute exists, knowing that you have\n\n already violated the statute, knowing that you have no good reason to continue to violate the\n\n statute and violating it anyway is a willful and intentional conduct.” “However,” it continued,\n\n “the Court cannot find that [the Department] acted in bad faith because there was no evidence\n\n they acted with a dishonest purpose and that is what is currently required under the case law.”\n\n The court reasoned, “Plaintiff maintains that the Williams and the Thomas cases were both\n\n wrongly decided, and I can’t say I necessarily disagree with that, but I am duty bound to follow\n\n them.” The circuit court therefore denied civil penalties on the basis that plaintiff had failed to\n\n prove the Department’s bad faith according to the standard articulated in Williams and Thomas.\n\n¶ 26 Following the oral ruling, the circuit court entered a written order on the same day\n\n which held that, “[f]or the reasons stated on the record, the Court finds the Plaintiff has not\n\n met its burden of showing that [the Department] willfully and intentionally failed to comply\n\n with FOIA or otherwise acted in bad faith.”\n\n\n 13\n\f No. 1-25-0205\n\n\n¶ 27 This timely appeal followed.\n\n¶ 28 ANALYSIS\n\n¶ 29 Plaintiff challenges on appeal the circuit court’s ruling which interpreted the relevant\n\n provision of FOIA to require a showing of dishonest purpose to prove bad faith in addition to\n\n willful and intentional conduct for a violation of FOIA to exist. See 5 ILCS 140/11(j) (West\n\n 2022). As the court relied on Williams, 2021 IL App (2d) 190971, and Thomas, 2023 IL App\n\n (1st) 211656, in this ruling, plaintiff requests that we diverge from the interpretation of section\n\n 11(j) promulgated in those earlier decisions.\n\n¶ 30 Standard of Review\n\n¶ 31 As a preliminary matter, when reviewing the denial of a civil penalties claim under\n\n FOIA, we subject factual findings to the manifest weight of the evidence standard. Rock River\n\n Times, 2012 IL App (2d) 110879, ¶ 48. Accordingly, we will not overturn those factual findings\n\n unless “an opposite conclusion is apparent” or the findings appear to be “unreasonable,\n\n arbitrary, or not based on the evidence.” Id. ¶ 48 (citing Goldberg v. Astor Plaza Condominium\n\n Ass’n, 2012 IL App (1st) 110620, ¶ 60). Here, we apply this standard to the circuit court’s\n\n finding in its oral ruling, as incorporated in its written order, that the Department’s actions of\n\n “knowing the statute exists, knowing that you have already violated the statute, knowing that\n\n you have no good reason to continue to violate the statute and violating it anyway” constituted\n\n willful and intentional conduct. As the circuit court made a reasonable assessment of the\n\n evidence from the evidentiary hearing—citing Officer Rodriguez’s lack of explanation for the\n\n three-month delay “after he became aware of the mistake” and the insufficiency of a possible\n\n privilege exemption to justify continued withholding of the records in their entirety—we find\n\n\n\n\n 14\n\f No. 1-25-0205\n\n\n that the circuit court’s holding that the Department exhibited willful and intentional conduct\n\n was not against the manifest weight of the evidence.\n\n¶ 32 The Department acknowledges this finding from the oral ruling on appeal, writing that\n\n the circuit court “found that [the Department] acted willfully and intentionally, but also found\n\n that [the Department] did not act in bad faith.” (Emphasis in original.). Although the circuit\n\n court later stated in its written order that “[p]laintiff has not met its burden of showing that [the\n\n Department] willfully and intentionally failed to comply with FOIA or otherwise acted in bad\n\n faith,” it did precede this statement with the phrase, “[f]or the reasons stated on the record,”\n\n signifying an intent to incorporate its prior oral ruling and finding that defendant had willfully\n\n and intentionally failed to comply with FOIA. The parties appear to be in agreement on this\n\n point, as they did not substantially address the issue in their briefing nor during oral arguments\n\n on appeal; we therefore will not further probe the issue here. See Ill. S. Ct. R. 341(h)(7) (eff.\n\n Oct. 1, 2020) (“Points not argued are forfeited ***.”).\n\n¶ 33 Statutory Construction\n\n¶ 34 The primary subjects of this appeal, then, are the circuit court’s finding that plaintiff\n\n failed to prove bad faith, coupled with the circuit court’s prior articulation in its oral ruling that\n\n plaintiff had failed to demonstrate that the Department had a “dishonest purpose.” The circuit\n\n court noted in its oral ruling that it had come to its understanding of section 11(j) based on the\n\n holdings in Thomas, 2023 IL App (1st) 211656, and Williams, 2021 IL App (2d) 190971. As\n\n these cases involve an interpretation of the statutory language of FOIA, particularly concerning\n\n the “or otherwise acted in bad faith” portion of section 11(j) (see 5 ILCS 140/11(j) (West\n\n 2022)), our review is ultimately an exercise in statutory construction.\n\n\n\n\n 15\n\f No. 1-25-0205\n\n\n¶ 35 Questions of statutory construction are questions of law which are reviewed de novo.\n\n Williams, 2021 IL App (2d) 190971, ¶ 13; Green v. Chicago Police Department, 2022 IL\n\n 127229, ¶ 35. The primary aim of statutory construction is to ascertain and give effect to the\n\n legislature’s intent. Williams, 2021 IL App (2d) 190971, ¶ 13. The most reliable indicator of\n\n legislative intent is the plain and ordinary meaning of the language in the statute. Id. Whenever\n\n possible, we must give each word, clause, and sentence of the statute a reasonable meaning to\n\n avoid rendering any part of it superfluous. In re Appointment of Special Prosecutor, 2019 IL\n\n 122949, ¶ 23; Green, 2022 IL 127229, ¶ 51. We must consider the statute in its entirety,\n\n including other provisions, rather than reading words or phrases in isolation. Green, 2022 IL\n\n 127229, ¶ 51. Where the statutory language is clear and unambiguous, we refrain from\n\n consulting extrinsic aids of construction. Rock River Times, 2012 IL App (2d) 110879, ¶ 36.\n\n¶ 36 Our analysis commences with a reading of the plain language of the statute. Section\n\n 11(j) provides:\n\n “If the court determines that a public body willfully and intentionally failed to comply\n\n with this Act, or otherwise acted in bad faith, the court shall also impose upon the public\n\n body a civil penalty of not less than $2,500 nor more than $5,000 for each occurrence.\n\n In assessing the civil penalty, the court shall consider in aggravation or mitigation the\n\n budget of the public body and whether the public body has previously been assessed\n\n penalties for violations of this Act.” 5 ILCS 140/11(j) (West 2022).\n\n¶ 37 This case centers on the meaning of the phrase “or otherwise acted in bad faith” in the\n\n broader context of a determination that a public body willfully and intentionally failed to\n\n comply with the requirements of FOIA. Both parties agree that this language indicates that a\n\n willful and intentional violation of FOIA constitutes a form of bad faith action of which there\n\n\n 16\n\f No. 1-25-0205\n\n\n are others. As such, “or otherwise acted in bad faith” represents a “catchall” category of\n\n possible bad faith actions that a public body can take in violation of FOIA. In statutory\n\n construction, such “catchall” terms reveal an implicit legislative understanding that it cannot\n\n list every specific instance within the category’s scope; thus, the examples of bad faith conduct\n\n that the legislature included here—willful and intentional noncompliance—are meant to be\n\n illustrative rather than exhaustive. See Chapman v. Chicago Department of Finance, 2023 IL\n\n 128300, ¶ 38 (applying the catchall doctrine to another subsection of FOIA); see also Williams,\n\n 2021 IL App (2d) 190971, ¶ 14 (acknowledging that the phrase “or otherwise” connotes a\n\n catchall term). In holding that “where a public body willfully, intentionally, and in bad faith\n\n failed to comply with the FOIA, the court shall impose a civil penalty,” the Williams court,\n\n however, supplanted the catchall term which the legislature had intended by replacing it with\n\n the conjunctive “and.” See Williams, 2021 IL App (2d) 190971, ¶ 14. In replacing the original\n\n language in the statutory standard, Williams imputed a higher standard of proof of “bad faith,”\n\n thereby eliminating the possibility that a “willful and intentional” violation of FOIA could in\n\n and of itself warrant civil penalties.\n\n¶ 38 Here, although the circuit court recognized a willful and intentional violation, it\n\n determined that “there was no evidence [the Department] acted with a dishonest purpose,” as\n\n “is currently required under the case law.” The “dishonest purpose” standard also originated\n\n in Williams, 2021 IL App (2d) 190971, ¶ 15. After its discussion of the “or otherwise” term in\n\n the statute, the Williams court consulted the Merriam-Webster Dictionary definitions of\n\n “willful” and “intentional”—which provided the definitions “deliberately” and “by design,”\n\n respectively—and the Merriam-Webster and Black’s Law Dictionary definitions of “bad\n\n faith”—which gave rise to “with a dishonest purpose”—to arrive at its formulation that, “based\n\n\n 17\n\f No. 1-25-0205\n\n\n upon the plain meaning of these terms, to warrant the imposition of a civil penalty under section\n\n 11(j), the public body not only must have intentionally failed to comply with the FOIA but\n\n must have done so deliberately, by design, and with a dishonest purpose.” Id. ¶ 15.\n\n¶ 39 Although it is appropriate to use dictionary aids to ascertain the ordinary meanings of\n\n terms which the statute itself does not define (Poris v. Lake Holiday Property Owners Ass’n,\n\n 2013 IL 113907, ¶ 48), we find the alternative definition which Williams provided for the term\n\n “bad faith”—“with a dishonest purpose”—to be unduly narrow. As plaintiff notes, the\n\n Williams court relied upon an older edition of Black’s Law Dictionary in devising its\n\n “dishonest purpose” definition. Williams, 2021 IL App (2d) 190971, ¶ 15 (quoting Black’s\n\n Law Dictionary 139 (6th ed. 1990)). Here, as section 11(j) was added to FOIA in 2010 (5 ILCS\n\n 140/11(j) (West 2022)), we consult the ninth edition of Black’s Law Dictionary, which defines\n\n bad faith as “[d]ishonesty of belief or purpose,” and includes an excerpt from Restatement\n\n (Second) of Contracts § 205 cmt. D (1979) which reads, “A complete catalogue of types of\n\n bad faith is impossible, but the following types are among those which have been recognized\n\n in judicial decisions: *** lack of diligence and slacking off, willful rendering of imperfect\n\n performance ***.” Black’s Law Dictionary 159 (9th ed. 2009). To reduce this definition to\n\n “with a dishonest purpose” negates the validity of other permissible versions of bad faith\n\n wherein the exact “state of mind” that the public body exhibited in its conduct was not\n\n exclusively purposeful dishonesty but could also encompass a knowing violation of FOIA.\n\n¶ 40 We acknowledge that the Williams court’s “deliberately, by design, and with a\n\n dishonest purpose” standard has been adopted in subsequent appellate court decisions denying\n\n plaintiffs’ requests for civil penalties for FOIA violations. See, e.g., Kraft v. City of Kankakee,\n\n 2022 IL App (3d) 210270-U, ¶¶ 23, 28; Edgar County Watchdogs v. Joliet Township, 2023 IL\n\n\n 18\n\f No. 1-25-0205\n\n\n App (3d) 210520, ¶¶ 30, 32; Thomas, 2023 IL App (1st) 211656, ¶ 15; Harsy v. Perry County\n\n Sheriff’s Office, 2024 IL App (5th) 180483-U, ¶¶ 40, 43. Other recent cases, however, have\n\n diverged from this standard. In Tobias v. City of Chicago Office of the Mayor, 2026 IL App\n\n (1st) 241435-U, ¶¶ 48-49, for instance, the court acknowledged Williams but noted that the\n\n Williams court “declin[ed] to honor the disjunctive *** ‘or’ ” from section 11(j). Tobias, by\n\n contrast, devised its own formulation that “to warrant civil penalties, the [public body’s] failure\n\n to comply with FOIA had to be done deliberately and by intention/design or the [public body]\n\n had to in some different way act dishonestly or fail to fulfill its statutory duty.” (Emphasis in\n\n original). We find the Tobias formulation more compelling than the one provided in Williams\n\n and thus adopt it here. See Ill. S. Ct. R. 23(e)(1) (eff. June 3, 2025) (“[A] nonprecedential order\n\n entered under subpart (b) of this rule on or after January 1, 2021, may be cited for persuasive\n\n purposes.”). Unlike the standard articulated in Williams, the Tobias framework honors section\n\n 11(j)’s original sentence structure in a manner that does not render the statute’s “or otherwise”\n\n catchall designation superfluous and does not attempt a judicial rewrite of the plain language\n\n of the statute. See Green, 2022 IL 127229, ¶ 51 (“We construe the statute to avoid rendering\n\n any part of it meaningless or superfluous.”); Zahn v. North American Power & Gas, LLC, 2016\n\n IL 120526, ¶ 15 (“No rule of construction authorizes us to declare that the legislature did not\n\n mean what the plain language of the statute imports, nor may we rewrite a statute to add\n\n provisions or limitations the legislature did not include.”).\n\n¶ 41 Divergent Case Law\n\n¶ 42 The Department only cites two reported pre-Williams cases in the section of its brief\n\n arguing for our adoption of the “deliberately, by design, and with a dishonest purpose”\n\n standard. One of these cases, also cited in Williams, 2021 IL App (2d) 190971, ¶ 14, is Garlick\n\n\n 19\n\f No. 1-25-0205\n\n\n v. Bloomingdale Township, 2018 IL App (2d) 171013, ¶ 40, which affirmed a denial of civil\n\n penalties due to the plaintiff’s failure to prove bad faith when the public body timely provided\n\n the plaintiff with the records he requested. The other pre-Williams case which the Department\n\n cites for this proposition is Rock River Times, 2012 IL App (2d) 110879, ¶ 54. That case is\n\n instructive here, as it involves a public body which delayed production of requested documents\n\n in violation of FOIA’s deadlines by consecutively asserting multiple statutory exemptions\n\n despite knowing those exemptions to be inapplicable. Id. In contrast to Williams, the Rock\n\n River Times court did not impose the conjunctive “and” in its articulation of the section 11(j)\n\n standard, instead reciting it as follows: “Once the trial court finds a willful and intentional\n\n failure to comply with the FOIA, or that the party acted in bad faith, it is required to, i.e.,\n\n ‘shall,’ impose a penalty.” Id. ¶ 49. Similar to the case at bar, the circuit court in Rock River\n\n Times found that the school district defendant had willfully and intentionally violated FOIA in\n\n delaying disclosure when it knew the justifications it had given for that delay were insufficient,\n\n but it continued to delay anyway. See id. ¶ 23. Unlike in our case, however, the circuit court\n\n in Rock River Times found that the totality of the evidence there demonstrated a “lack of good\n\n faith” on the part of the school district. See id. As such, the Rock River Times court revealed\n\n that a public body’s knowing violation of FOIA’s statutory deadlines may evidence bad faith.\n\n¶ 43 Among the post-Williams cases which the Department heavily relies upon is Thomas,\n\n 2023 IL App (1st) 211656, ¶¶ 21-24, in which another division of our court affirmed a denial\n\n of civil penalties. In Thomas, the defendant, Cook County, asserted a statutory privacy interest\n\n exemption as justification for its failure to release requested records. Id. ¶¶ 18-20 (citing 5\n\n ILCS 140/7(1)(c) (West 2018)). The plaintiff, Thomas, who had been convicted of murder,\n\n had requested autopsy and postmortem photographs and X-rays of the murder victim through\n\n\n 20\n\f No. 1-25-0205\n\n\n FOIA. Id. ¶¶ 3-4. Although the circuit court granted partial summary judgment for Thomas, it\n\n also held that there was no evidence to demonstrate willful or intentional conduct or otherwise\n\n bad faith action on the part of the County to warrant civil penalties. Id. ¶ 10. During the hearing\n\n on the motion for reconsideration presented by Thomas, the County argued that “knowingly\n\n raising an exemption could not constitute a willful and intentional violation of FOIA, even if\n\n the exemption was later determined to be inapplicable,” and the court accepted this argument\n\n by denying the motion. Id. ¶ 12.\n\n¶ 44 The appellate court in Thomas affirmed the judgment of the circuit court, holding that\n\n the County had reasonably asserted a privacy exemption under FOIA, which appeared to\n\n undercut a finding that the County was motivated by bad faith. Id. ¶¶ 18-21. In so ruling, the\n\n appellate court quoted the “deliberately, by design, and with a dishonest purpose” standard\n\n from Williams, 2021 IL App (2d) 190971, ¶ 14. Thomas, 2023 IL App (1st) 211656, ¶ 15. The\n\n opinion also included the conjunctive “and” and omitted the catchall “or otherwise” language\n\n in two later rearticulations of the “willful,” “intentional,” “bad faith” standard from section\n\n 11(j), but its use of that exact articulation was inconsistent. Id. ¶ 16 (“A trial court’s finding\n\n that a public body willfully, intentionally, and in bad faith failed to comply with FOIA ***.”);\n\n see also id. ¶ 17 (“the trial court found that the County did not willfully, intentionally, and in\n\n bad faith fail to comply with FOIA”); but see id. ¶ 17 (“the court further explained that the\n\n County did not act willfully, intentionally, or in bad faith ***. We agree.”).\n\n¶ 45 Unlike in Thomas, the Department here did not initially assert any recognized FOIA\n\n exemptions in response to plaintiff’s request for records. See id. ¶¶ 18-20. Rather, the\n\n Department provided plaintiff with unrecognized excuses for its delay, such as “issues with\n\n our portal and a back log of FOIA request[s],” as stated in its December 13, 2022, e-mail. See\n\n\n 21\n\f No. 1-25-0205\n\n\n 5 ILCS 140/9(b) (West 2022) (“Each public body denying a request for public records shall\n\n notify the requester in writing of the decision to deny the request, the reasons for the denial,\n\n including a detailed factual basis for the application of any exemption claimed[.]”). Although\n\n the Department later claimed in its answer to plaintiff’s complaint that some of the responsive\n\n records “may” have contained exempt information—including private information protected\n\n under FOIA section 7(1)(b) (see id. § 7(1)(b)), information prohibited from disclosure under\n\n federal or State law (see id. § 7(1)(a)), and documents which contained expressions of opinions\n\n or formulations of policies or actions (see id. § 7(1)(f))—these arguments were ultimately\n\n resolved below and are not the subject of this appeal. Additionally, the circuit court here found\n\n that the Department had exhibited willful and intentional conduct in failing to comply with\n\n FOIA. Given these factual distinctions and our general disagreement with the version of the\n\n section 11(j) standard adopted from Williams—which the Thomas court incorporates\n\n inconsistently throughout its opinion—we reject the application of Thomas here.\n\n¶ 46 In construing legislative intent, we consider the statute as a whole, rather than reading\n\n the provision at issue in isolation. Green, 2022 IL 127229, ¶ 51. Section 1 of FOIA, which\n\n addresses the public policy purposes and legislative intent of the statute, reads in part:\n\n “The General Assembly hereby declares that it is the public policy of the State of\n\n Illinois that access by all persons to public records promotes the transparency and\n\n accountability of public bodies at all levels of government.\n\n ***\n\n Restraints on access to information, to the extent permitted by this Act, are limited\n\n exceptions to the principle that the people of this State have a right to full disclosure of\n\n information relating to the decisions, policies, procedures, rules, standards, and other\n\n\n 22\n\f No. 1-25-0205\n\n\n aspects of government activity that affect the conduct of government and the lives of\n\n any or all of the people. The provisions of this Act shall be construed in accordance\n\n with this principle. This Act shall be construed to require disclosure of requested\n\n information as expediently and efficiently as possible and adherence to the deadlines\n\n established in this Act.” 5 ILCS 140/1 (West 2022).\n\n It is clear from this text that the legislature intended FOIA to allow for the expedient and\n\n efficient disclosure of government information, in compliance with the statutory deadlines\n\n provided, so as to promote government transparency and accountability. In the case at bar,\n\n though the circuit court recognized that an internal mistake was responsible for the\n\n Department’s initial delay in disclosure, it ruled that the Department’s continued delay for the\n\n months following April 2023 constituted willful and intentional conduct in violation of FOIA.\n\n Based on the testimony at the evidentiary hearing, the circuit court ascertained that the\n\n Department’s FOIA personnel had knowledge of the timing requirements of FOIA, were aware\n\n due to the lawsuit’s existence that they were in violation of those requirements, and continued\n\n their violation nonetheless. This conduct runs afoul of the above principles articulated in the\n\n statute in favor of expedient disclosure, and exhibits a willful and intentional failure to comply\n\n with FOIA as the legislature sought to address in enacting the civil penalties provision in 2010.\n\n See id. § 11(j).\n\n¶ 47 Rule of Lenity\n\n¶ 48 The Department also argues that statutes are to be construed strictly against the\n\n imposition of penalties—a canon of construction known as the rule of lenity. The Department\n\n cites Bittner v. United States, 598 U.S. 85, 101 (2023), for this proposition. The text of Bittner,\n\n however, in fact contradicts the Department’s argument, stating that “[u]nder the rule of lenity,\n\n\n 23\n\f No. 1-25-0205\n\n\n this Court has long held, statutes imposing penalties are to be ‘construed strictly’ against the\n\n government and in favor of individuals.” Id. Regardless, an application of the rule of lenity\n\n here as the Department has proposed could render the legislature’s stated purpose of\n\n “requir[ing] disclosure of requested information as expediently and efficiently as possible and\n\n adherence to the deadlines established in this Act” (5 ILCS 140/1 (West 2022)) and the 2010\n\n addition of section 11(j) superfluous. See In re Appointment of Special Prosecutor, 2019 IL\n\n 122949, ¶ 23; Green, 2022 IL 127229, ¶ 51 (“Each word, clause, and sentence of a statute must\n\n be given a reasonable meaning, if possible, and should not be rendered superfluous.”); see also\n\n People v. Gutman, 2011 IL 110338, ¶ 43 (“[T]he rule of lenity must not be stretched so far or\n\n applied so rigidly as to defeat the legislature’s intent.”). Furthermore, courts generally only\n\n apply canons of construction such as the rule of lenity in cases of ambiguity—not, as here,\n\n where the plain and ordinary meaning of the language of the statute is clear. See Schultz v.\n\n Performance Lighting, Inc., 2013 IL 115738, ¶ 12 (“[T]o the extent there is any ambiguity,\n\n penal statutes and statutes that create ‘new liabilities’ should be strictly construed in favor of\n\n persons sought to be subjected to their operation and will not be extended beyond their\n\n terms.”); see also City of Chicago v. Janssen Pharmaceuticals, Inc., 2017 IL App (1st) 150870,\n\n ¶ 20 (“[I]f the language of the statute is not ambiguous, we need not *** resort to other aids of\n\n statutory construction to determine the legislative intent.”).\n\n¶ 49 Additionally, with respect to the federal cases the Department cites for its rule of lenity\n\n argument and for its argument that administrative delays are insufficient to constitute bad faith,\n\n we emphasize that although Illinois courts may look to federal FOIA cases as guidance for\n\n statutory construction of the Illinois version of FOIA (see Green, 2022 IL 127229, ¶ 60),\n\n section 11(j) is one of the clearest instances of divergence between the federal statute and the\n\n\n 24\n\f No. 1-25-0205\n\n\n Illinois one. Compare 5 U.S.C. § 552(a)(4)(E)-(F) (2024) (detailing procedures for when FOIA\n\n complainants have “substantially prevailed” against the government, including attorney fee\n\n procedures and disciplinary actions for agency employees who acted arbitrarily or\n\n capriciously, but not describing any mechanism for complainants to obtain civil penalties for\n\n willful, intentional, or otherwise bad faith violations) with 5 ILCS 140/11(j) (West 2024); see\n\n Uptown People’s Law Center v. Department of Corrections, 2014 IL App (1st) 130161, ¶ 18\n\n (rejecting application of federal case law for purpose of statutory construction concerning\n\n Illinois FOIA section 11(i), which the Illinois legislature intentionally wrote differently so as\n\n not to mirror the federal version).\n\n¶ 50 A further point of divergence is that while the rule of lenity has been applied to federal\n\n statutes which impose civil penalties in federal case law (see Bittner, 598 U.S. at 102\n\n (identifying cases in which the rule of lenity has been applied to interpret federal civil statutes\n\n that impose both civil penalties and criminal sanctions)), it has been applied solely in the penal\n\n context in Illinois. See, e.g., Gutman, 2011 IL 110338, ¶ 12 (“Pursuant to the rule of lenity,\n\n ambiguous criminal statutes will generally be construed in the defendant's favor.” (Emphasis\n\n added.)); People v. Hicks, 164 Ill. 2d 218, 222 (1995) (“[P]enal statutes, where ambiguous,\n\n should be construed to afford lenity to the accused.” (Emphasis added.)); People v. Alejos, 97\n\n Ill. 2d 502, 510 (1983) (“[A] policy of lenity applies with respect to the interpretation of\n\n criminal statutes[.]” (Emphasis added and internal quotation marks omitted.)). Accordingly,\n\n we reject the Department’s analogy to federal case law for these purposes.\n\n¶ 51 Manifest Weight\n\n¶ 52 Finally, the circuit court’s written order that the “[p]laintiff has not met its burden of\n\n showing that [the Department] willfully and intentionally failed to comply with FOIA or\n\n\n 25\n\f No. 1-25-0205\n\n\n otherwise acted in bad faith” is against the manifest weight of the evidence. As the circuit court\n\n itself noted, Officer Rodriguez failed to offer a sufficient explanation for the additional delay\n\n in disclosure after April 2023. In the Department’s brief on appeal, it argues that the “landscape\n\n changes,” suggesting that the ordinary timeline of mandated response to a FOIA request is\n\n expanded once a lawsuit is filed to accommodate “ordinary incidents of litigation.” As plaintiff\n\n notes, however, the FOIA statute does not list litigation as an enumerated basis for an extension\n\n of time to respond to a request, suggesting that the legislature did not contemplate such an\n\n excuse to permit further violations of FOIA. See 5 ILCS 140/3(d)-(e) (West 2022).\n\n Additionally, even if litigation had caused further delay in its processing of the responsive\n\n records, the Department failed to seek an extension in the circuit court through the permissible\n\n method outlined in section 11(d) of the statute. See 5 ILCS 140/11(d) (West 2022). (“If the\n\n public body can show that exceptional circumstances exist, and that the body is exercising due\n\n diligence in responding to the request, the court may retain jurisdiction and allow the agency\n\n additional time to complete its review of the records.”).\n\n¶ 53 The other justifications the Department offered for its delay in disclosure—the\n\n hypothetical risk of accidentally disclosing “deliberative, confidential, or privileged\n\n information”; Officer Rodriguez’s need to confer with other departments concerning the\n\n records; and the possibility of the records containing private information regarding witnesses,\n\n suspects, and innocent parties—were appropriately addressed and disposed of below.\n\n Consequently, the circuit court’s denial of civil penalties was against the manifest weight of\n\n the evidence.\n\n\n\n\n 26\n\f No. 1-25-0205\n\n\n¶ 54 CONCLUSION\n\n¶ 55 The circuit court’s denial of civil penalties is reversed, and the case is remanded for\n\n determination of appropriate civil penalties.\n\n¶ 56 Reversed and remanded.\n\n\n\n\n 27\n\fNo. 1-25-0205\n\n\n\n Lucy Parsons Labs v. Chicago Police Department, 2026 IL App (1st) 250205\n\n\nDecision Under Review: Appeal from the Circuit Court of Cook County, No. 2023-CH-\n 01181; the Hon. Eve M. Reilly, Judge, presiding.\n\n\nAttorneys Matthew Topic, Shelley Geiszler, Merrick Wayne, and Josh\nfor Loevy, of Loevy & Loevy, of Chicago, for appellant.\nAppellant:\n\n\nAttorneys Mary B. Richardson-Lowry, Corporation Counsel, of Chicago\nfor (Myriam Zreczny Kasper, Suzanne M. Loose, and Elizabeth\nAppellee: Mary Tisher, Assistant Corporation Counsel, of counsel), for\n appellee.\n\n\n\n\n 28\n\f"} {"dedup_key":"2026 IL App (1st) 252112-U","dedup_key_type":"neutral_citation","neutral_citation":"2026 IL App (1st) 252112-U","case_name":"People v. Rucker (Better Government Association et al., Intervenors)","court_level":"Appellate","appellate_district":"1st","year":2026,"county":"Cook","appellate_docket":"1-25-2112","circuit_docket":"25 CR 0760401","published":0,"authoring_justice":"Johnson","statute":[],"exemptions_cited":[],"public_body":"City of Chicago","requesting_party":"Better Government Association, The Chicago Sun-Times, NBC Chicago, and Jamie Kalven","disposition":"reversed","relevance":"mention_only","summary_source":"generated","summary":"This is a criminal case where the court addressed the improper application of civil discovery rules to restrict public access to records. The court reversed the trial court's protective order, noting that the decision does not preclude future nondisclosure claims under FOIA by the record custodians.","best_text_source":"Court Opinions - Flagged for Review/People v. Rucker 2026 IL App (1st) 252112-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":1,"enriched_at":"2026-07-13T18:11:04.315060","site_category":"Police & Investigative Records","date_decided":"2026-03-27","site_url":"/cases/2026%20IL%20App%20(1st)%20252112-U/","text_url":"/case-text/2026%20IL%20App%20(1st)%20252112-U.txt","full_text":" 2026 IL App (1st) 252112-U\n No. 1-25-2112\n Order filed March 27, 2026\n Fifth Division\n\n\n NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the\n limited circumstances allowed under Rule 23(e)(1).\n ______________________________________________________________________________\n IN THE\n APPELLATE COURT OF ILLINOIS\n FIRST DISTRICT\n ______________________________________________________________________________\n THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the\n ) Circuit Court of\n Plaintiff-Appellee, ) Cook County.\n )\n v. ) No. 25 CR 0760401\n )\n ADRIAN RUCKER, ) Honorable\n ) Barbara Dawkins,\n Defendant ) Judge, Presiding.\n )\n (Better Government Association, The Chicago Sun-Times, )\n NBC Chicago, and Jamie Kalven, Intervenors- )\n Appellants). )\n\n\n\n JUSTICE ODEN JOHNSON delivered the judgment of the court.\n Presiding Justice Mitchell & Justice Wilson concurred in the judgment.\n\n ORDER\n\n¶1 Held: The trial court erred in applying Illinois Supreme Court Rule 201(c)(1) (eff. Mar.\n 17, 2023), a civil discovery rule as the basis for not vacating its June 13, 2025, order\n barring nonparty custodians from releasing certain materials.\n\n¶2 This appeal involves the denial of media access to presumably public records in a criminal\n\ncase involving the fatal shooting of Chicago Police Officer Krystal Rivera on June 5, 2025. On\n\fNo. 1-25-2112\n\n\nJune 13, 2025, the trial court granted the State’s motion to withhold the release of certain materials,\n\nordering that “the City of Chicago and its entities shall not release any material under RD#\n\nJJ283172, RD# JJ283372, and COPA Log# 2025-0002747 related to this case under the\n\nTransparency Policy or the Freedom of Information Act until further order of [c]ourt.”\n\n¶3 Intervenors-Appellants Better Government Association, The Chicago Sun-Times, NBC\n\nChicago and Jamie Kalven (collectively intervenors) appeal the September 10, 2025, denial of\n\ntheir motion to vacate the June 13, 2025, order barring the release of records.. On this interlocutory\n\nappeal, intervenors contend that: (1) the trial court erroneously applied an access to court records\n\nanalysis to a motion to vacate an order prohibiting a public body from releasing its own public\n\nrecords; (2) the requirements for a confidentiality order were not met; and (3) the order violates\n\nthe party presentation principle. For the reasons that follow, we reverse.\n\n¶4 BACKGROUND\n\n¶5 As noted above, this stems from the shooting death of Chicago Police Officer Krystal\n\nRivera on June 5, 2025, by her partner, Chicago Police Officer Carlos Baker after a traffic stop.\n\nOn June 13, 2025, the State filed a motion to withhold the release of records, which the trial court\n\ngranted. In granting the State’s motion, the trial court entered a blanket order barring the City of\n\nChicago and its entities from releasing any material, under RD# JJ283172, RD# JJ283372, and\n\nCOPA Log# 2025-0002747, related to this case under the Transparency Policy or the Freedom of\n\nInformation Act (FOIA) until further order of the court.\n\n¶6 Defendant Rucker, who allegedly pointed a gun at the officers, was subsequently indicted\n\non July 7, 2025, and charged with several counts of armed violence, possession of a controlled\n\nsubstance with intent to deliver, possession of fraudulent identification cards, and unlawful\n\n\n\n -2-\n\fNo. 1-25-2112\n\n\npossession of a firearm. Jaylin Arnold, who allegedly fled from police after the traffic stop, was\n\ncharged on July 21, 2025, with multiple counts of armed violence, possession of a controlled\n\nsubstance with intent to deliver, and various firearm possession charges.\n\n¶7 On August 7, 2025, the intervenors filed a motion to intervene and vacate the court’s order\n\nof June 13, 2025. On August 21, 2025, the State also filed a motion to vacate the June 13, 2025,\n\norder, contending that the reasons for the order no longer applied because both Rucker and Arnold\n\nhad been charged and arraigned. However, the State noted that its motion did not waive any\n\napplicable assertions that the State would claim over those materials in response to any FOIA\n\nrequest or subpoena received, nor did it waive any claim or privilege that may be asserted by the\n\ncustodian of those materials.\n\n¶8 A hearing on both motions was held on September 10, 2025, at which the State confirmed\n\nthat it was in agreement with vacating the June 13, 2025, order. The State further explained that it\n\ndid not represent the parties covered by the order and was not the keeper of those records. Counsel\n\nfor Rucker stated that Rucker had no objection to releasing it, and Arnold’s attorney took no\n\nposition.\n\n¶9 The trial court granted the intervenors’ leave to intervene in the case, but denied their\n\nmotion to vacate its June 13, 2025, order. The court explained that it was barring disclosure of\n\nChicago Police Department and COPA 1 materials. The court relied on Illinois Supreme Court Rule\n\n201(c)(1) (eff. Mar. 17, 2023), which allows the court to issue a protective order at any time on its\n\nown initiative as justice requires, denying, limiting, conditioning or regulating discovery to prevent\n\nunreasonable annoyance, expense, embarrassment, disadvantage, or oppression. The court also\n\n\n 1\n COPA is the Civilian Office of Police Accountability for the City of Chicago.\n\n -3-\n\fNo. 1-25-2112\n\n\nstated that the overriding interest in protecting the rights of the defendants overcame any first\n\namendment presumption that may exist and ordered that the records would stay sealed.\n\n¶ 10 The intervenors filed their notice of interlocutory appeal on October 10, 2025. After the\n\nintervenors’ brief was filed, this court, on its own motion, ordered the State to file a response to\n\nthe intervenors’ brief, which it did on January 27, 2026.\n\n¶ 11 ANALYSIS\n\n¶ 12 On appeal, intervenors contend that: (1) the trial court erroneously applied an access to\n\ncourt records analysis to a motion to vacate an order prohibiting a public body from releasing its\n\nown public records; (2) the requirements for a confidentiality order were not met; and (3) the order\n\nviolates the party presentation principle. The intervenors seek reversal of the trial court’s order,\n\nand requests that the June 13, 2025, order be vacated.\n\n¶ 13 The State likewise contends that the trial court erred in denying its motion to vacate the\n\nJune 13, 2025, order but on a different basis. The State asserts that the trial court abused its\n\ndiscretion in relying on a civil discovery rule in a criminal case as the basis for not vacating the\n\nJune 13, 2025, order which barred nonparty custodians from releasing certain records. Specifically,\n\nthe State contends that the trial court relied on Supreme Court Rule 201(c)(1) found in Article II\n\nof the Supreme Court Rules, which was inapplicable to this criminal proceeding, as Article IV of\n\nthe Supreme Court Rules apply to criminal proceedings.\n\n¶ 14 Intervention is the proper vehicle to seek access to sealed proceedings and records. People\n\nv. Kelly, 397 Ill. App. 3d 232, 242-43 (2009). Further, our supreme court has held that an order\n\nrestricting public access to documents is reviewable under Supreme Court Rule 307(a)(1) (eff.\n\nNov. 1, 2017) as an interlocutory injunctive order. People v. Zimmerman, 2018 IL 122261, ¶ 22;\n\n\n -4-\n\fNo. 1-25-2112\n\n\nPeople v. Van Dyke, 2020 IL App (1st) 191384, ¶ 49-50. A trial court’s order denying access to a\n\nmedia intervenor is in the nature of injunctive relief. Van Dyke, 2020 IL App (1st) 191384, ¶ 49.\n\n¶ 15 That said, we turn our attention to the merits of this appeal, whether the trial court erred in\n\ndenying both the intervenors’ and the State’s motions to vacate the June 13, 2025, order which\n\nsealed records of the City of Chicago and its various entities related to this case.\n\n¶ 16 When reviewing the denial of a motion by media intervenors to unseal a court file, we\n\nreview the trial court’s decision for an abuse of discretion. 2 Id. ¶ 66. An abuse of discretion occurs\n\nwhen the trial court’s decision is arbitrary, fanciful, or unreasonable or where no reasonable person\n\nwould take the position adopted by the trial court. Id. Here the intervenors and the State maintain\n\nthat the trial court used the wrong criteria in evaluating their motions to vacate the June 13, 2025,\n\norder. Therefore, we must specifically determine whether the record establishes that the trial court\n\napplied the correct criteria because if a trial court’s decision is based on an error of law, then an\n\nabuse of discretion clearly occurred. People v. Porter-Boens, 2013 IL App (1st) 111074, ¶ 10.\n\n¶ 17 Our supreme court has held that public records are presumed to be open and accessible.\n\nIn re Appointment of Special Prosecutor, 2019 IL 122949, ¶ 25. FOIA is to be liberally construed\n\nto achieve the goal of providing the public with easy access to government information. Id.\n\nConsequently, FOIA’s exceptions to disclosure are to be construed narrowly so as not to defeat\n\nthe intended statutory purpose. Id. Under the common law, there is a presumption that allows the\n\npublic to inspect and copy public records and documents, including all documents filed with the\n\ncourt. Zimmerman, 2018 IL 122261, ¶ 40. This common law right of public access to court records\n\n\n 2\n We recognize that while the materials in question are not sealed court files, they were\nnevertheless sealed under court order thus we will use the same standard of review as if they were sealed\ncourt files.\n\n -5-\n\fNo. 1-25-2112\n\n\nis essential to the proper functioning of a democracy in that citizens rely on information about our\n\njudicial system in order to form an educated and knowledgeable opinion of its functioning. Id. The\n\ncommon law right of access symbolizes the recognition that the public interest is best served by\n\nincreasing the public’s knowledge about what is transpiring inside the judicial process. Id.\n\n¶ 18 However, our supreme court has also held that the common law right of access to judicial\n\nrecords is not absolute. Id. ¶ 43. Every court has supervisory power over its own records and files,\n\nand access may be denied where court files might become a vehicle for improper purposes. Id.\n\n¶ 19 When faced with a request for media access, a trial court generally determines whether a\n\npresumption of public access applies to the particular type of information sought. Van Dyke, 2020\n\nIL App (1st) 191384, ¶ 78. If the trial court finds the presumption applies, then it determines\n\nwhether the presumption is rebutted by other concerns. Id. In deciding to deny access to certain\n\nproceedings and records for a certain length of time, the trial court has to craft a careful and delicate\n\nbalance among competing interests. Id.\n\n¶ 20 Turning to the instant case, we first note that, as both parties have pointed out in their briefs\n\nto this court as well as in their motions to vacate in the trial court, the materials at issue in this case\n\nare not court records. Rather, they are public records in the custody and control of the Chicago\n\nPolice Department and COPA and are not within the custody or control of any party to this case\n\nor other judicial body. While it is clear that a trial court is within its power to supervise the release\n\nof court documents and proceedings, it is highly questionable as to whether the trial court has\n\njurisdiction over such materials or nonjudicial custodians at this juncture in order to bar the release\n\nof such public records pursuant to a media request under FOIA.\n\n\n\n\n -6-\n\fNo. 1-25-2112\n\n\n¶ 21 Additionally, the trial court sua sponte determined that it would indefinitely extend the\n\nblanket ban on the release of such public records, using Supreme Court Rule 201(c)(1) as\n\njustification for its order. We agree with the State that this was error. Rule 201 provides general\n\ndiscovery provisions for civil proceedings in the trial court, and subsection (c)(1) governs the\n\nprevention of abuse and provides for protective orders as follows: “[t]he court may at any time on\n\nits own initiative, or on motion of any party or witness, make a protective order as justice requires,\n\ndenying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance,\n\nexpense, embarrassment, disadvantage, or oppression. Ill. S. Ct. R. 201(c)(1).\n\n¶ 22 Discovery in criminal cases is governed by Supreme Court Rules 411 through 429. Rule\n\n411, Applicability of Discovery Rules, specifically states that these rules shall be applied in all\n\ncriminal cases wherein the accused is charged with a felony. Ill. S. Ct. R. 411 (eff. Dec. 9, 2011).\n\nSee also People v. Williford, 271 Ill. App. 3d 922, 925 (1995). Rule 415(d) provides for protective\n\norders if the party furnishing material to any attorney or a defendant files for a protective order to\n\nrestrict or defer further disclosures and the court may restrict such disclosures upon a showing of\n\ncause. Ill. S. Ct. R. 415(d) (eff. Oct. 23, 2020). Thus, in contrast to the civil discovery rules, the\n\ncriminal discovery rules do not allow a court to sua sponte restrict access to materials, rather, a\n\nparty to the case must file for a protective order.\n\n¶ 23 It is clear that the trial court applied the wrong law to reach its conclusion that it could sua\n\nsponte bar the release of public records by a nonparty entity based on Rule 201(c)(1), and where\n\nthe records are not court documents, nor under the care or custody of any party to the case. It\n\nfollows then that such action was an abuse of discretion and we reverse the trial court’s denial of\n\nboth motions to vacate filed by the intervenors and the State.\n\n\n\n -7-\n\fNo. 1-25-2112\n\n\n¶ 24 CONCLUSION\n\n¶ 25 For the foregoing reasons, we reverse the trial court’s denial of the motions to vacate the\n\nearlier June 13, 2025, protective order of certain documents. Nothing in this decision requires the\n\nrelease of the materials named, forecloses any basis the respective custodians may have for\n\nnondisclosure under FOIA (5 ILCS 140/1 et seq. (West 2024), nor does it bar the parties to the\n\ncriminal case from filing appropriate motions under Supreme Court Rule 415(d) (eff. Oct. 23,\n\n2020) if they can show cause for a protective order.\n\n¶ 26 Reversed.\n\n\n\n\n -8-\n\f"} {"dedup_key":"2026 IL App (5th) 241062-U","dedup_key_type":"neutral_citation","neutral_citation":"2026 IL App (5th) 241062-U","case_name":"Carl Lenard and Prisoner Media-X v. The Office of the Illinois Secretary of State","court_level":"Appellate","appellate_district":"5th","year":2026,"county":"Randolph","appellate_docket":"5-24-1062","circuit_docket":"23-LA-36","published":0,"authoring_justice":"McHaney","statute":["FOIA"],"exemptions_cited":[],"public_body":"Office of the Illinois Secretary of State","requesting_party":"Carl Lenard","disposition":"affirmed","relevance":"relevant","summary_source":"syllabus","summary":"The court affirmed the dismissal of the plaintiff's complaint because he failed to comply with statutory requirements for submitting FOIA requests. Consequently, the defendant never received the requests, and its duty to respond was never triggered.","best_text_source":"Court Opinions - FOIA/Lenard v. Office of IL Secretary of State 2026 IL App (5th) 241062-U.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:11:08.907375","site_category":"FOIA Response Process","date_decided":"2026-02-24","site_url":"/cases/2026%20IL%20App%20(5th)%20241062-U/","text_url":"/case-text/2026%20IL%20App%20(5th)%20241062-U.txt","full_text":" NOTICE\n 2026 IL App (5th) 241062-U\n NOTICE\n Decision filed 02/24/26. The\n This order was filed under\n text of this decision may be NO. 5-24-1062 Supreme Court Rule 23 and is\n changed or corrected prior to\n the filing of a Petition for not precedent except in the\n\n Rehearing or the disposition of\n IN THE limited circumstances allowed\n the same. under Rule 23(e)(1).\n APPELLATE COURT OF ILLINOIS\n\n FIFTH DISTRICT\n______________________________________________________________________________\n\nCARL LENARD and PRISONER MEDIA-X, ) Appeal from the\n ) Circuit Court of\n Plaintiffs, ) Randolph County.\n )\nv. ) No. 23-LA-36\n )\nTHE OFFICE OF THE ILLINOIS SECRETARY OF )\nSTATE, )\n )\n Defendant-Appellee ) Honorable\n ) Lucas H. Liefer,\n(Carl Lenard, Plaintiff-Appellant). ) Judge, presiding.\n______________________________________________________________________________\n\n JUSTICE McHANEY delivered the judgment of the court.\n Justices Sholar and Hackett concurred in the judgment.\n\n ORDER\n\n¶1 Held: We affirm the circuit court’s order dismissing the plaintiff’s complaint, as he failed\n to comply with statutory requirements in submitting his Freedom of Information\n Act requests.\n\n¶2 The plaintiff, Carl Lenard, appeals the July 10, 2024, order of the circuit court of Randolph\n\nCounty, dismissing his complaint against the defendant, the Office of the Illinois Secretary of State\n\n(ILSOS). For the following reasons, we affirm the dismissal.\n\n¶3 I. BACKGROUND\n\n¶4 On October 17, 2023, Lenard, acting pro se, filed a complaint against the defendant,\n\nILSOS, alleging violations of the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West\n\n\n 1\n\f2022)). In addition to naming Lenard as plaintiff, bringing the action on behalf of himself, the\n\ncomplaint purported to be filed on behalf of “Prisoner Media-X, the nonprofit 501(c)(3)\n\norganization formed by [Lenard] and parent company of Redacted Legal News; a news\n\npublication.”\n\n¶5 The complaint alleged that Lenard submitted requests to ILSOS on behalf of himself and\n\nPrisoner Media-X. Lenard alleged that on or about March 20, 2023, he submitted three individual\n\nletters to ILSOS requesting records for inspection and/or copying, and he mailed his requests via\n\nthe United States Postal Service (USPS) to: “Attn: FOIA Officer; 17 North State Street, Suite 1179,\n\nChicago, Illinois 60602. See exhibits D, E, F, G.” Lenard alleged he sent a follow-up letter to the\n\nsame address on or about April 13, 2023. On or about April 28, 2023, Lenard considered the lack\n\nof response from ILSOS to be a denial, so he filed a request for review with the Public Access\n\nCounselor (PAC) of the Office of the Illinois Attorney General. The PAC responded to Lenard,\n\nadvising that it had “determined that no further inquiry is warranted.”\n\n¶6 The complaint alleged that Lenard submitted four additional letters to ILSOS on or about\n\nJune 27, 2023, with requests to inspect or copy records. He mailed these letters via USPS to: “Attn:\n\nFOIA Officer; 17 North State Street, Suite 1179, Chicago, Illinois 60602. See exhibits I, J, K, L.”\n\nLenard alleges that ILSOS denied a total of 41 requests in his various letters. He alleged that ILSOS\n\n“willfully, intentionally and/or in bad faith denied his FOIA requests.” Lenard’s request for relief\n\nincluded an order for ILSOS to provide the requested documents, penalties in the amount of\n\n$205,000 paid to Lenard, and costs of filing suit.\n\n¶7 On February 21, 2024, ILSOS filed a motion to dismiss the complaint pursuant to section\n\n2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2022)). ILSOS argued\n\nthat the complaint should be dismissed because the plaintiffs failed to establish that they properly\n\n\n 2\n\fsubmitted FOIA requests to ILSOS. This argument was supported by the affidavit of Janna\n\nSpriester, the FOIA officer for ILSOS, who stated that the ILSOS record system did not show\n\nreceipt of any FOIA request from Lenard from March 18, 2023, to October 17, 2023. Next, ILSOS\n\nargued that the requests failed to comply with FOIA procedures because they were improperly\n\naddressed. Finally, ILSOS argued that the request for review submitted to the PAC did not\n\nconstitute receipt of the request. Further, as to Prisoner Media-X, ILSOS argued that a corporation\n\nmay only file a complaint through a licensed attorney, so it should be dismissed as a party. Plaintiff\n\nwas granted time to file a written response to the motion to dismiss; however, the record on appeal\n\ndoes not contain a response.\n\n¶8 On July 10, 2024, the circuit court entered a written order that dismissed the complaint in\n\nits entirety, with prejudice. Lenard filed a timely motion to reconsider the order dismissing the\n\ncomplaint. Before the motion to reconsider could be ruled upon, Lenard filed a notice of appeal.\n\nThe circuit court denied the motion to reconsider on February 6, 2025, which made Lenard’s notice\n\nof appeal effective that day.\n\n¶9 II. ANALYSIS\n\n¶ 10 Lenard argues that the affidavit by Spriester is false and that ILSOS received all FOIA\n\nrequests via email on June 7, 2023. Lenard further argues that he did not send the requests to an\n\nimproper address, as he sent the requests to the address maintained by the PAC. The ILSOS\n\nresponds that the circuit court properly dismissed Lenard’s complaint because Lenard failed to\n\nsubmit his FOIA requests in compliance with the ILSOS regulations and failed to send them to the\n\nFOIA officer’s designated address as identified on the Secretary’s official forms. As a result,\n\nILSOS was never in receipt of the requests under the Act, as further established by ILSOS’s\n\nunrebutted affidavit evidence. Finally, ILSOS argues that only individuals who have been denied\n\n\n 3\n\faccess to records, meaning that an agency has actually received a request, may bring an action\n\nunder section 11 of FOIA (5 ILCS 140/11 (West 2022)). We agree.\n\n¶ 11 Our review of an order granting a motion to dismiss is de novo. Pinkston v. City of Chicago,\n\n2023 IL 128575, ¶ 21. On de novo review, this court may affirm the circuit court’s judgment on\n\nany basis established by the record and law. Funkhouser v. City of Granite City, 2025 IL App (5th)\n\n240666, ¶ 22.\n\n¶ 12 In reviewing a dismissal under section 2-619, this court construes all well-pleaded facts\n\nand makes all reasonable inferences in the plaintiff’s favor. Goral v. Dart, 2020 IL 125085, ¶ 27;\n\nSmith v. Jones, 2025 IL App (5th) 231136, ¶ 19. However, it “disregard[s] all legal and factual\n\nconclusions in the complaint that are not supported by specific factual allegations.” McHenry\n\nTownship v. County of McHenry, 2022 IL 127258, ¶ 57. Similarly, “unsupported conclusions,\n\nopinions, or speculation are insufficient to” survive a section 2-619 motion to dismiss.\n\nNorthwestern Illinois Area Agency on Aging v. Basta, 2022 IL App (2d) 210234, ¶ 47 (citing Valfer\n\nv. Evanston Northwestern Healthcare, 2016 IL 119220, ¶ 20; Rojo v. Tunick, 2021 IL App (2d)\n\n200191, ¶ 41).\n\n¶ 13 The affirmative matter contemplated in a motion to dismiss must be apparent on the face\n\nof the complaint; otherwise, the motion must be supported by affidavits or other evidentiary\n\nmaterials. Masters v. Murphy, 2020 IL App (1st) 190908, ¶ 16. A defendant may present\n\n“affidavits or other evidentiary matter” to support an asserted defense under section 2-619(a)(9)\n\nof the Code, in which case “the burden shifts to the plaintiff to establish that the defense is\n\nunfounded or requires the resolution of an essential element of material fact before it is proven.”\n\nMcIntosh v. Walgreens Boots Alliance, Inc., 2019 IL 123626, ¶ 16. Facts contained in an affidavit\n\n\n\n\n 4\n\fsupporting a dispositive motion that are not contradicted by a counteraffidavit are to be taken as\n\ntrue. Barber-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1071 (1992).\n\n¶ 14 FOIA expressly authorizes public bodies to promulgate rules governing the time, place,\n\nand person from whom records may be requested. 5 ILCS 140/3(h) (West 2024). ILSOS has\n\nexercised that authority by adopting regulations requiring that FOIA requests be addressed to the\n\nFOIA officer or the director of the department maintaining the requested records. 2 Ill. Adm. Code\n\n551.130(a). The proper address of the FOIA officer is an “ ‘easily proved issue[ ] of fact’ ”\n\nappropriate for resolution under section 2-619. Colon v. Illinois Central R.R. Co., 2024 IL App\n\n(1st) 221841, ¶ 24 (quoting Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995)).\n\n¶ 15 Here, as alleged in his complaint, Lenard’s requests were sent to 17 North State Street,\n\nSuite 1179, Chicago, Illinois 60602, rather than the address prescribed by ILSOS, 100 West\n\nRandolph St., Ste. 15-600, Chicago, IL 60601. For this reason, Lenard failed to properly submit\n\nhis FOIA request. Additionally, ILSOS supported its motion to dismiss with the affidavit of\n\nSpriester, who averred that the ILSOS record system did not show receipt of any FOIA request\n\nfrom Lenard from March 18, 2023, to October 17, 2023. Further, due to Lenard’s request not being\n\nreceived, he was not denied access to records.\n\n¶ 16 Because Lenard failed to comply with the prescribed procedures for submitting FOIA\n\nrequests, ILSOS never received his requests within the meaning of the Act, and ILSOS’s duty to\n\nrespond was never triggered. Absent receipt of a proper request, Lenard was not denied access to\n\npublic records and therefore lacked a right of action under section 11 of FOIA. Harper v. Health\n\nCare Service Corp., 2023 IL App (1st) 220078, ¶ 47. Therefore, the circuit court properly\n\ndismissed Lenard’s complaint.\n\n\n\n\n 5\n\f¶ 17 Additionally, Lenard cannot properly represent Prisoner Media-X. Lenard, proceeding\n\npro se, filed his complaint on behalf of himself and Prisoner Media-X. Prisoner Media-X is a\n\nnonprofit 501(c)(3) organization formed by Lenard and parent company of Redacted Legal News\n\nand, as a corporate entity, must be represented by a licensed attorney. Downtown Disposal\n\nServices, Inc. v. City of Chicago, 2012 IL 112040, 54. While the absence of counsel for Prisoner\n\nMedia-X is not directly before this court, we note the rule to clarify that Lenard, as a non-attorney,\n\nmay not file pleadings or otherwise litigate claims on behalf of the corporation.\n\n¶ 18 III. CONCLUSION\n\n¶ 19 For the reasons stated above, we affirm the decision of the circuit court.\n\n\n\n¶ 20 Affirmed.\n\n\n\n\n 6\n\f"} {"dedup_key":"2026 IL App (5th) 241354","dedup_key_type":"neutral_citation","neutral_citation":"2026 IL App (5th) 241354","case_name":"Dorman v. The Madison County Board, et al.","court_level":"Appellate","appellate_district":"5th","year":2026,"county":"Madison","appellate_docket":"5-24-1354","circuit_docket":"22-MR-254","published":1,"authoring_justice":"Clarke","statute":["FOIA"],"exemptions_cited":[],"public_body":"Madison County Board, Madison County Sheriff, and Madison County State’s Attorney","requesting_party":"Kotomi Dorman","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The appellate court reversed the circuit court's dismissal of a FOIA complaint, holding that the public bodies failed to demonstrate compliance with the statutory requirements of 5 ILCS 140/3(g) regarding the opportunity to narrow burdensome requests. The case was remanded for further proceedings to ensure proper adherence to FOIA's procedural prerequisites.","best_text_source":"Court Opinions - FOIA/Dorman v. Madison County Bd 2026 IL App (5th) 241354.pdf","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:11:08.907472","site_category":"Fees & Burdensome Requests","date_decided":"2026-02-10","site_url":"/cases/2026%20IL%20App%20(5th)%20241354/","text_url":"/case-text/2026%20IL%20App%20(5th)%20241354.txt","full_text":"Order filed February 10, 2026. 2026 IL App (5th) 241354\nMotion to publish granted\nMarch 11, 2026. NO. 5-24-1354\n\n IN THE\n\n APPELLATE COURT OF ILLINOIS\n\n FIFTH DISTRICT\n______________________________________________________________________________\n\nKOTOMI DORMAN, ) Appeal from the\n ) Circuit Court of\n Plaintiff-Appellant, ) Madison County.\n )\nv. ) No. 22-MR-254\n )\nTHE MADISON COUNTY BOARD, )\nTHE MADISON COUNTY SHERIFF, and )\nTHE MADISON COUNTY STATE’S ATTORNEY, ) Honorable\n ) Ronald S. Motil,\n Defendants-Appellees. ) Judge, presiding.\n______________________________________________________________________________\n\n JUSTICE CLARKE ∗ delivered the judgment of the court, with opinion.\n Justices Boie and McHaney concurred in the judgment and opinion.\n\n OPINION\n\n¶1 The plaintiff, Kotomi Dorman, appeals from the circuit court’s judgment dismissing her\n\nFreedom of Information Act (FOIA) complaint against defendants, the Madison County Board\n\n(Board), the Madison County Sheriff (Sheriff), and the Madison County State’s Attorney (State).\n\nOn appeal, the plaintiff argues we should reverse and remand for further proceedings because the\n\ncircuit court erroneously dismissed her complaint. We agree.\n\n\n\n\n ∗\n Justice Moore was originally assigned to the panel. Justice Clarke was later substituted on the\npanel and has read the briefs.\n 1\n\f¶2 I. BACKGROUND\n\n¶3 On November 1, 2022, the plaintiff filed a four-count complaint. Count I alleged that on\n\nNovember 9, 2021, the plaintiff sent a FOIA request via email to the Board, which stated the\n\nfollowing:\n\n “Under the provisions of the freedom of Information Act, I am requesting\n\n electronic/digital copies of the allegations, evidence, what is believed to be misconduct,\n\n notice, actions and conduct taken by Doug Hulme and Rob Dorman described in the\n\n termination resolution passed by the County Board, supporting the following factual\n\n portions of the resolutions.\n\n WHEREAS, the Board has been advised of and reviewed allegations and evidence\n\n regarding what it believes to be misconduct on the part of employee Rob Dorman;\n\n WHEREAS, this misconduct was a misuse of the powers entrusted upon Rob\n\n Dorman as IT Director for Madison County, causing the Board to lose confidence in his\n\n ability to continue to perform this job;\n\n WHEREAS, Rob Dorman was provided prior notice of, and an opportunity to\n\n attend, this hearing to review these allegations by this Board as required under the Madison\n\n County Personnel Policies for County Appointed Officials and Department Heads section\n\n X;\n\n WHEREAS, the actions undertaken by Rob Dorman were outside the bounds of\n\n ethical conduct and standards that are expected for someone in his position of leadership;\n\n WHEREAS, it is believed his conduct is violative of the public trust.\n\n Specifically I am requesting digital copies\n\n 1. The prior notice provided to Doug Hulme and Rob Dorman\n\n\n 2\n\f 2. The allegations\n\n 3. The evidence\n\n 4. What the misuse of powers were\n\n 5. The name of the allegations advisor and list of the advised in attendance, and\n\n time and location of the review”\n\nThe plaintiff alleged the Board failed to respond to her request following a five-day extension.\n\nCount II, which was specifically pled against the State, and count III, which was specifically pled\n\nagainst the Sheriff, were the same as count I. In each count, the plaintiff alleged the defendant’s\n\nfailure to comply was willful and intentional.\n\n¶4 Count IV alleged that on January 13, 2022, the plaintiff sent a FOIA request via email to\n\nthe State, which allegedly requested “electronic copies of any and all emails attachments and or\n\ndocuments sent and or received by Shannon Goforth and or Jennifer Vucich/Mudge with any and\n\nor all of the following words: Township, Democrat, Precinct, Committeemen, Label ***.” On\n\nJanuary 14, 2022, the plaintiff amended the January 13, 2022, FOIA request via email by adding\n\nthe words “Sample Ballot.” The plaintiff alleged the State failed to respond to her request.\n\n¶5 As relief, the plaintiff requested the circuit court order the defendants “to conduct a\n\nreasonable search and produce any and all responsive records, plus costs, attorney fees, and a\n\n$5,000 civil penalty.”\n\n¶6 In March of 2023, the Sheriff filed its answer and affirmative defenses to the plaintiff’s\n\ncomplaint. In its answer, the Sheriff denied the allegations contained in count III by stating that\n\nthe allegations were legal conclusions. The Sheriff asserted the affirmative defenses that section\n\n7(b) and 7(c) of the FOIA prohibited disclosure. 5 ILCS 140/7(b), (c) (West 2022). The Sheriff\n\n\n\n\n 3\n\fdid not assert an unduly burdensome exemption under section 3(g) as an affirmative defense. Id.\n\n§ 3(g).\n\n¶7 In April of 2023, the Board and State filed their joint answer and affirmative defenses. In\n\ntheir joint answer related to count I, the Board admitted that the plaintiff made a FOIA request on\n\nNovember 9, 2021, and that it responded on November 17, 2021, requesting a five-day extension.\n\nFurther, it answered “that, through the State’s Attorney’s Office, the Board responded to Plaintiff’s\n\nrequest on November 29, 2021, and produced all documents responsive to Request 1. After diligent\n\nsearch, the State’s Attorney’s Office had no documents responsive to Request 4 through 5, and the\n\nrequest was closed.” Regarding count II, the State admitted and answered the same. In its answer\n\nto count IV, the State admitted that the plaintiff made a FOIA request on January 13, 2022, that\n\nwas later amended with additional language on January 14, 2022. The State further admitted that\n\nit responded on January 21, 2022, requesting a five-day extension. Additionally, it admitted that\n\n“no records were produced in response to [p]laintiff’s [r]equest prior to [p]laintiff’s filing of this\n\nlawsuit.” The Board and State did not assert an unduly burdensome exemption under section 3(g)\n\nas an affirmative defense. Attached to the Board and State’s joint answer and affirmative defenses\n\nwas an email, which contained the Board and State’s November 29, 2021, response as it related to\n\ncounts I and II.\n\n¶8 On July 14, 2023, the Board and State filed a joint “motion for relief pursuant to 5 ILCS\n\n§ 140/11(f).” In the motion, the Board and State alleged the plaintiff’s January 13, 2022, FOIA\n\nrequest resulted in 2,500 emails, with 1,476 identified as potentially responsive records, consisting\n\nof over 69,000 pages that contained confidential personal information. The Board and State\n\nindicated in their motion an obligation to review the requested records, noting that 120 hours had\n\nbeen spent reviewing, redacting, and compiling these records. Due to the significant volume of\n\n\n 4\n\fpages, the Board and State requested that the circuit court allow them to raise an exemption under\n\nsection 3(g) of the FOIA and find the request to be unduly burdensome. Neither the motion for\n\nrelief, nor the record on appeal, contains evidence from the State that it provided the plaintiff an\n\nopportunity to confer with it in an attempt to reduce the request to manageable proportions before\n\nrequesting to invoke the section 3(g) exemption. In the alternative, the Board and State requested\n\nthe circuit court to conduct an in camera review of the documents, assess the claimed statutory\n\nexemptions, and enter an order that the proposed production of documents complies with the\n\nFOIA. Attached to the motion was an affidavit, which indicated the 69,000 pages of responsive\n\nrecords contained confidential personal information, and a “general log of records,” which\n\nidentified the records by category and bates number. Each record category listed in the general log\n\nincluded a general description of the information and the nature of the claimed exemption.\n\n¶9 On August 28, 2023, a hearing was held on the motion for relief 1 and an order was entered\n\non September 14, 2023. In the circuit court’s order, it found “that at this stage of the litigation and\n\nat this time, the Defendants shall not be permitted to raise an exemption under 5 ILCS 140/3(g).”\n\nAdditionally, it noted that an in camera review of the 69,000 pages “would be an inefficient burden\n\non the [c]ourt’s time.” Consequently, the circuit court appointed attorney Adam Bragee as special\n\nmaster to review the 69,000 pages and determine which pages, or parts thereof, qualify for\n\nexemptions under the FOIA. The order specified that Bragee was to be “privately compensated by\n\nthe Plaintiff for services rendered at the maximum hourly rate of $300.00 per hour with the amount\n\nof $3000.00 to be paid *** as retainer prior to the start of services.” Upon completion of the review,\n\nBragee was to submit a report to the circuit “court and the parties containing his findings as to the\n\n\n\n\n 1\n The record on appeal does not include a transcript of the August 28, 2023, hearing.\n 5\n\fpossible exemptions and also the records which will be released pursuant to the Freedom of\n\nInformation Act.”\n\n¶ 10 On November 13, 2023, the case was called for a status hearing. A transcript of the hearing\n\nis not included in the record on appeal. However, on December 27, 2023, the circuit court issued\n\nan order indicating that the plaintiff had not complied with the September 14, 2023, order, and “re-\n\nset” for hearing the defendants’ joint motion for relief on January 26, 2024. After several\n\ncontinuances, the circuit court held a hearing on the joint motion on November 25, 2024. At the\n\ncommencement of the hearing, it was noted that Christopher Baucom represented the Board and\n\nState, Julie Chambers represented the Sheriff, and the plaintiff was present and represented by\n\nThomas Maag.\n\n¶ 11 Baucom argued, inter alia, that the plaintiff did not comply with the September 14, 2023,\n\norder, noting that the circuit court appointed Bragee to conduct an in camera review to “resolve\n\nthe issue.” Baucom claimed that because the plaintiff did not comply with the September 14, 2023,\n\norder, she implicitly acknowledged that her request, which resulted in 69,000 pages of records,\n\nwas excessively burdensome and subject to dismissal under the FOIA. Further, he argued that the\n\nplaintiff could have narrowed the request but has “chosen not to now that we’ve been at this for a\n\nyear.” Maag responded by arguing that there is no provision of the FOIA that obligates a requester\n\nto pay an attorney to conduct an in camera review “to the benefit of the other side.” Further, he\n\nresponded by stating the fact that the plaintiff’s request yielded 69,000 records did not mean the\n\nrecords were exempt from being produced under the FOIA. In addition, Maag stated that the FOIA\n\ndoes not require the plaintiff “to hire an attorney for the defendants,” suggesting that it would be\n\nmore appropriate for the circuit court to order the defendants to produce and submit to the circuit\n\ncourt a representative sample of what they claim is privileged. Maag emphasized that the\n\n\n 6\n\fdefendants did not respond to the plaintiff’s request, and “by not even responding has waived any\n\nobjection to being unduly burdensome.” Nonetheless, Maag maintained that if the defendants\n\nwished to object to the plaintiff’s request as unduly burdensome, “it is up to [the defendants] to\n\npay” Bragee’s retainer fee.\n\n¶ 12 After hearing oral arguments from both parties, the circuit court determined that the\n\nplaintiff’s FOIA request was unduly burdensome. In ruling, the circuit court noted that the plaintiff\n\ndid not comply with the September 14, 2023, order, which the court stated was intended to\n\nconserve judicial resources. The circuit court then stated:\n\n “I don’t think that taking a representative grouping of pages would alleviate the problem\n\n or alleviate the burden to the Court or to the defendant, and I don’t think it would be solved\n\n with appointing—I disagree. I don’t think that using a non-attorney as an assistant to an\n\n attorney to do a review really is not a proper use of that type of position. I think the reason\n\n why I appointed a special master as an attorney is that it does involve points of law, and I\n\n think the parties would be more comfortable with an attorney giving this review of the\n\n 69,000 pages that had been requested. So that coupled with the fact that there has been\n\n ignoring of the Court’s order—we’re now past a year and some odd months when nothing\n\n is done I think does speak to the burden of the request, and on that basis I’m going to grant\n\n the defendant’s motion for relief pursuant to those sections of the statute that I had stated,\n\n and we’ll allow a dismissal of the case.”\n\n¶ 13 On November 25, 2024, the circuit court entered a written order stating, “Defendants’\n\nMotions for Relief are called and heard. For the reasons stated on the record, the motions are\n\nGranted. Judgment entered in favor of Defendants.” The plaintiff timely appealed. Additional facts\n\nwill be set forth in our analysis below when necessary.\n\n\n 7\n\f¶ 14 II. ANALYSIS\n\n¶ 15 As an initial matter, the Sheriff asks that we strike the pro se plaintiff’s brief on appeal for\n\nfailure to comply with Illinois Supreme Court Rule 341(h)(6) (eff. Oct. 1, 2020) because the\n\nstatement of facts contains unsupported allegations, lacks citations to the record, and includes a\n\nseries of argumentative statements.\n\n¶ 16 We agree that Rule 341(h)(6) requires a brief statement of facts to be “stated accurately\n\nand fairly without argument or comment, and with appropriate reference to the pages of the record\n\non appeal.” Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1, 2020). However, whether to dismiss this appeal due\n\nto violations of Rule 341(h)(6) is a matter within our discretion. McCann v. Dart, 2015 IL App\n\n(1st) 141291, ¶ 12. As the plaintiff’s violations do not hinder our review, we will not strike the\n\nstatement of facts. McMackin v. Weberpal Roofing, Inc., 2011 IL App (2d) 100461, ¶ 3. However,\n\nwe admonish the plaintiff to carefully adhere to the requirements of the supreme court rules in\n\nfuture appeals.\n\n¶ 17 On appeal, the plaintiff raises several arguments. We begin by addressing whether the\n\ncircuit court abused its discretion in its September 14, 2023, order appointing a special master and\n\nrequiring the plaintiff to pay the services of the appointed special master for an in camera review.\n\nThe parties agree that the applicable standard of review is abuse of discretion. See Geraci v.\n\nAmidon, 2013 IL App (2d) 120023-U 2 (applying an abuse of discretion standard in evaluating the\n\ntrial court’s denial of the plaintiff’s motion to appoint a special master).\n\n\n\n\n 2\n Nonprecedential Rule 23 orders issued on or after January 1, 2021, may be cited for persuasive\npurposes. Ill. S. Ct. R. 23(e)(1) (eff. Jan. 1, 2021).\n 8\n\f¶ 18 The plaintiff argues that the circuit court erred by appointing a special master to conduct a\n\nreview of FOIA records and by ordering that “the fee of the [s]pecial [m]aster shall be borne by\n\nthe [p]laintiff,” the FOIA requester. We agree.\n\n¶ 19 The Freedom of Information Act (FOIA or Act) (5 ILCS 140/1 et seq. (West 2022)) is a\n\ncomprehensive statutory scheme that defines both the obligations of public bodies and the\n\nauthority of the courts in FOIA enforcement actions. Section 11 of the Act expressly provides the\n\nprocedures available to a circuit court when reviewing a public body’s denial of records, including\n\nthe authority to conduct an in camera examination of the records at issue. Id. § 11(f). FOIA places\n\nthe burden of justifying nondisclosure squarely on the public body and contemplates that the court\n\nitself will resolve disputes concerning exemptions and disclosure. Nothing in the Act authorizes a\n\ncircuit court to delegate that statutory responsibility to a third party or to condition judicial review\n\non a requester’s payment of additional costs.\n\n¶ 20 FOIA is to be construed liberally in favor of disclosure, and its exemptions are to be\n\nconstrued narrowly. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401,\n\n407 (1997). To further that remedial purpose, the legislature expressly authorized courts to award\n\nattorney fees and costs to prevailing requesters and to impose civil penalties on public bodies for\n\nwillful or intentional violations. 5 ILCS 140/11(i), (j) (West 2022). Notably absent from the statute\n\nis any provision permitting a court to assess costs against a requester as a prerequisite to review or\n\nas a means of facilitating compliance.\n\n¶ 21 The circuit court’s appointment of a special master finds no support in FOIA. In federal\n\ncourt, such appointments are governed by Federal Rule of Civil Procedure 53, which strictly limits\n\ntheir use, generally requires party consent absent exceptional circumstances, and mandates careful\n\njudicial consideration of both the scope of the master’s authority and the allocation of costs. Fed.\n\n\n 9\n\fR. Civ. P. 53(a), (g). The federal rule expressly requires courts to allocate payment among the\n\nparties after considering the fairness of the allocation and the nature of the dispute. Fed. R. Civ. P.\n\n53(g)(3). FOIA contains no comparable authorization, no consent-based framework, and no cost-\n\nallocation mechanism permitting review expenses to be shifted to a requester.\n\n¶ 22 Illinois has likewise adopted no procedural rule analogous to Federal Rule 53 authorizing\n\ncircuit courts to appoint special masters, defining their permissible duties, or regulating\n\ncompensation. In fact, just the opposite has occurred. In 1962, an amendment to article VI of our\n\nstate constitution, which became effective January 1, 1964, abolished the offices of fee officers\n\nand masters in chancery as part of our judicial system. Carey v. Elrod, 49 Ill. 2d 464, 469 (1971);\n\nsee also Hurst v. Papierz, 16 Ill. App. 3d 574, 589 (1973) (noting that the trial court should not\n\nallow a master or other fee officer to conduct an accounting as to the amount the plaintiff was\n\nwrongfully denied of an interest in a joint venture but should itself conduct the accounting). In\n\nJenner v. Wissore, 164 Ill. App. 3d 259 (1988), the Appellate Court, Fifth District described a\n\nproceeding in which the trial court appointed an attorney to serve as a special master to review\n\nexpenditures and report findings to the court, notwithstanding that “the office of master in chancery\n\nhas been abolished.” Id. at 265 (citing Factor v. Factor, 27 Ill. App. 3d 594, 597 (1975)). The\n\ncourt’s discussion underscores that, absent statutory authorization, the appointment of such an\n\nofficer lacks grounding in Illinois law. Additionally, section 14 of article VI of the Illinois\n\nConstitution now provides that “[t]here shall be no fee officers in the judicial system.” Ill. Const.\n\n1970, art. VI, § 14.\n\n¶ 23 The circuit court’s inherent authority to manage its docket likewise does not justify the\n\nappointment of a special master. While circuit courts possess inherent power to control their\n\nproceedings, including the authority to dismiss actions for want of prosecution (see Sander v. Dow\n\n\n 10\n\fChemical Co., 166 Ill. 2d 48, 65-66 (1995)), that authority is not unlimited and may not be\n\nexercised in a manner that conflicts with, or expands beyond, a legislatively prescribed statutory\n\nscheme. FOIA expressly authorizes in camera review by the circuit court and assigns\n\nresponsibility for nondisclosure to the public body. 5 ILCS 140/11(f) (West 2022). Substituting a\n\nspecial master for the court’s own review alters the statutory design and shifts the burden of\n\ncompliance away from the public body.\n\n¶ 24 The error was compounded when the circuit court required the plaintiff alone to bear the\n\ncost of the special master. FOIA does not authorize a court to impose compliance or review-related\n\ncosts on a requester. To the contrary, the Act expressly permits recovery of fees and costs by\n\nrequesters who prevail against noncompliant public bodies. Id. § 11(i). Imposing review costs on\n\na requester undermines FOIA’s purpose by creating a financial barrier to the public’s statutory\n\nright of access to government records.\n\n¶ 25 Here, the circuit court appointed a special master to perform a function FOIA assigns to\n\nthe court itself and conditioned the continuation of the plaintiff’s FOIA action on her payment for\n\nthat appointment. “Courts have no power to delegate judicial functions unless clearly authorized\n\nby law.” People v. Love, 83 Ill. App. 3d 948, 951 (1980). Because FOIA does not permit delegation\n\nof in camera review, does not authorize appointment of a special master, and does not allow costs\n\nto be imposed on a requester, the September 14, 2023, order exceeded the circuit court’s authority\n\nand is hereby vacated. The plaintiff’s subsequent noncompliance with that unauthorized order,\n\ntherefore, could not properly serve as the basis for dismissal of her complaint. Where, as here, the\n\ncircuit court expressly relied on the plaintiff’s noncompliance with that order in dismissing all\n\ncounts of the plaintiff’s FOIA action, the dismissal cannot stand.\n\n\n\n\n 11\n\f¶ 26 Accordingly, we reverse the judgment of dismissal and remand for further proceedings\n\nconsistent with this opinion. On remand, the circuit court shall reinstate the plaintiff’s FOIA action\n\nand proceed under section 11 of FOIA, including conducting any in camera review it deems\n\nnecessary, without appointing a special master or requiring the plaintiff to bear costs not authorized\n\nby statute. Additionally, the public bodies may raise any applicable statutory exemptions under\n\nFOIA, including section 3(g), which may be asserted during FOIA litigation. Kelly v. Village of\n\nKenilworth, 2019 IL App (1st) 170780, ¶ 49. However, before a public body may rely on the\n\nunduly burdensome exemption set forth in section 3(g), FOIA requires that the public body first\n\nconfer with the requester and afford an opportunity to narrow the request in an effort to reduce the\n\nburden. 5 ILCS 140/3(g) (West 2022). Because the record does not affirmatively demonstrate that\n\nsuch an effort occurred here, the circuit court shall ensure compliance with the statutory\n\nprerequisites set forth in section 3(g) before considering any relief on that basis.\n\n¶ 27 III. CONCLUSION\n\n¶ 28 Based on the foregoing, we find the circuit court erred in dismissing the plaintiff’s\n\ncomplaint. We consequently reverse the circuit court’s order granting dismissal in the defendants’\n\nfavor and remand for further proceedings consistent with the guidance contained herein, which\n\nincludes the opportunity for the defendants to raise an exemption upon complying with section\n\n3(g) of the FOIA, in addition to the plaintiff’s pursuit of appropriate remedies. As a result of our\n\ndisposition of this case, we need not address the other arguments on appeal.\n\n\n\n¶ 29 Reversed and remanded with directions.\n\n\n\n\n 12\n\f Dorman v. The Madison Co. Bd., etc., 2026 IL App (5th) 241354\n\n\nDecision Under Review: Appeal from the Circuit Court of Madison County, No. 22-MR-\n 254; the Hon. Ronald S. Motil, Judge, presiding.\n\n\nAttorneys Kotomi M. Dorman, of Maryville, for appellant (pro se).\nfor\nPros se Appellant:\n\n\nAttorneys Paul L. Brusati and Hannah Hope, of Armstrong Teasdale LLP,\nfor of St. Louis, MO, for Madison Co. Bd. and Madison Co. State’s\nAppellee: Attorney, Heidi L. Eckert, of Blitz, Bardgett & Deutsch, LC, of\n St. Louis, MO, for Madison Co. Sheriff.\n\n\n\n\n 13\n\f"} {"dedup_key":"pre1996-143365","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"279 ill-app-3d 553","case_name":"Lieber v. Southern Illinois University","court_level":"Appellate","appellate_district":"5th","year":1996,"county":null,"appellate_docket":"5-95-0470","circuit_docket":null,"published":1,"authoring_justice":"Hopkins","statute":["FOIA"],"exemptions_cited":["7(1)(c)"],"public_body":"Southern Illinois University","requesting_party":"Stan Lieber","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that Southern Illinois University failed to meet its burden of proving that requested freshman housing inquiry records were exempt from disclosure under the Freedom of Information Act. The appellate court reversed the trial court's grant of summary judgment for the university and remanded with directions to enter summary judgment in favor of the plaintiff.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=143365","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:39.339133","site_category":"FOIA Response Process","date_decided":"1996-05-07","site_url":"/cases/pre1996-143365/","text_url":"/case-text/pre1996-143365.txt","full_text":"STAN LIEBER, Plaintiff-Appellant, v. SOUTHERN ILLINOIS UNIVERSITY, Defendant-Appellee.\nFifth District\nNo. 5—95—0470\nOpinion filed May 7, 1996.\nThomas R. Peters and Curtis R. Picou, both of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellant.\nLee Ellen Starkweather and Shari R. Rhode, both of Carbondale, for ap-pellee.\n\nPRESIDING JUSTICE HOPKINS\ndelivered the opinion of the court:\nPlaintiff, Stan Lieber, filed a complaint in the Jackson County circuit court seeking mandatory and permanent injunctions to require defendant, Southern Illinois University (SIU), to provide Lieber with certain information requested under the Illinois Freedom of Information Act (Act) (5 ILCS 140/1 et seq. (West 1992)). On June 21, 1995, the trial court entered summary judgment in favor of SIU. On appeal, Lieber argues that the trial court failed to apply the proper legal analysis in reaching its decision and that summary judgment in favor of SIU is improper. For reasons we will more fully explain, we reverse.\nI. FACTS\nPlaintiff filed his initial complaint on May 18, 1993, alleging that SIU had improperly refused his demand for information under the Act. In his demand, Lieber requested \"a complete listing of any and all records relating to freshman housing inquiries, made for the 1993-1994 school year, including the name, address, and telephone number of each and every inquiry received by the University from an accepted freshman, from February 1st, 1993[,] to April 9th, 1993.” Lieber owns Stevenson Arms, which is approved as off-campus housing for freshmen attending SIU. Unmarried freshmen at SIU who are under age 21 and who do not live with their parents are required to live in an on-campus dormitory or in approved off-campus housing such as Stevenson Arms.\nOn September 13, 1993, SIU filed a motion for judgment on the pleadings, alleging that \"the information requested by Plaintiff is per se exempt under Section 7(1)(b)(i) [(5 ILCS 140 / 7(1)(b)(i) (West 1992))] because it is personal information maintained with respect to students (i.e., freshman [sic]) or other individuals receiving educational services (i.e., information about freshmen housing) from a public body.” In the motion for judgment on the pleadings, SIU also argued that among the categories of information specifically exempted by the legislature are those listed in section 7(1)(b) of the Act, which provides as follows:\n\"(1) The following shall be exempt from inspection and copying:\n(b) Information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. *** Information exempted under this subsection (b) shall include but is not limited to:\n(i) files and personal information maintained with respect to clients, patients, residents, students or other individuals receiving social, medical, educational, vocational, financial, supervisory or custodial care or services directly or indirectly from federal agencies or public bodies.” 5 ILCS 140/7(l)(b)(i) (West 1992).\nLieber filed a response to SIU’s motion for judgment on the pleadings, arguing that the information he requested was not exempt under the Act and that, in any event, SIU published a student directory listing the same information it claimed to be an unwarranted invasion of the students’ privacy. The student directory, which lists the names, addresses, and telephone numbers of SIU students, would not timely fulfill Lieber’s demand under the Act.\nAlthough the record does not indicate how the court ruled on SIU’s motion for judgment on the pleadings, Lieber filed his first amended complaint for injunctive relief on December 20, 1993. The allegations of the amended complaint that are pertinent to this appeal are: that SIU \"solicits prospective students from throughout the State of Illinois”; that SIU \"owns and operates certain student housing facilities for its students”; that SIU charges each freshman student living in an on-campus dormitory more than $3,100 annually; that the costs of and services provided by off-campus housing, such as that owned by Lieber, are different from the costs of and services provided by SIU for on-campus housing; that SIU receives thousands of inquiries about its freshman housing facilities each year from students, their parents and guardians, and the public; that in the past Lieber made \"numerous similar demands,” pursuant to the Act, upon SIU; that at all prior times SIU \"provided all materials sought”; and that SIU, by its president, John Guyon, refused Lieber’s current request for information.\nOn January 12, 1994, SIU filed its answer and first affirmative defense to Lieber’s first amended complaint. In the answer, SIU admitted all of the allegations of the complaint, except that SIU denied that Lieber made similar demands for information in the past or that SIU provided the information upon request in the past, and SIU denied that it had violated the Act. In its affirmative defense, SIU alleged that Lieber’s request for information \"was made for a purpose of generating income” for Lieber from Stevenson Arms; that the requested information would not disclose any information regarding \"the conduct of government” or the official acts of any public official or public employee; that the individuals requesting information regarding freshman housing at SIU have a \"personal privacy interest in their name, address and telephone number”; that the invasion of that privacy interest would be \"unwarranted”; and that SIU had not violated the Act by denying Lieber’s request for information.\nLieber filed a reply in objection to SIU’s affirmative defense, arguing that the allegations did not amount to an affirmative defense, that SIU’s previous practice of disseminating the very material it was seeking to conceal estopped SIU from asserting any such privacy right, and that SIU’s \"refusal to abide by the duty imposed by the [Act] deprives its applicants, who are not yet students, of timely access to all available freshman, university-approved, housing options and thus prejudices the choice of affordable university-approved housing.”\nOn the 28th of December, 1994, the court granted SIU’s motion for leave to file an amended affirmative defense. In its amended affirmative defense, SIU alleged only the following:\n\"1. The information sought by Plaintiff is exempt from disclosure under the Freedom of Information Act because the information, if disclosed, would constitute a clearly unwarranted invasion of personal privacy.”\nSIU made no further allegations and cited to section \"7(i)(b) [sic].” We note that there is no section 7(i)(b) in the Act, but from the context of the record, we assume that SIU meant to refer to section 7(l)(b)(i).\nOn January 11, 1995, Lieber filed a reply in objection to SIU’s amended affirmative defense, arguing, \"[The] 'affirmative defense’ is plead [sic] as a bald conclusion without any requisite facts as required in Illinois,” and again arguing the estoppel and other issues argued in its objection to SIU’s first affirmative defense.\nOn February 9, 1995, SIU filed a motion for summary judgment, and on February 14, 1995, Lieber filed his motion for summary judgment. The court denied both motions on February 21, 1995, without explanation.\nOn May 8, 1995, SIU filed its second motion for summary judgment, alleging that since the date the court denied both parties’ earlier motions for summary judgment, SIU \"obtained significant evidence regarding the purpose of the Plaintiffs Freedom of Information Act request.” SIU argued that the only reason Lieber was seeking the information was to solicit students to live in Stevenson Arms, which Lieber owns. In support of this allegation, SIU quoted Clyde Swanson, the manager of Stevenson Arms, from his deposition, wherein he testified that Lieber’s intent for the use of the information requested \"remains as it always was; to insure that [he] had an equal opportunity to market [his] property.” In the motion, SIU further alleged that Swanson testified in his deposition that when \"the names of admitted students were received in the past, Stevenson Arms 'mailed each person on that list a letter of solicitation.’ ” SIU argued that it was entitled to judgment as a matter of law based upon the following statement of public policy in the Act: \"This Act is not intended to be used to violate individual privacy, nor for the purpose of furthering a commercial enterprise.” 5 ILCS 140/1 (West 1992).\nOn June 6, 1995, Lieber filed his response to SIU’s second motion for summary judgment. Lieber framed the issue for the court as \"when, if ever, the court may or must consider the plaintiffs purpose in seeking disclosure of the requested documents.” Lieber argued that his purpose in seeking the information was \"irrelevant in this case.”\nIn additional written arguments to the court, the parties outlined their respective positions concerning whether Lieber’s request would improperly further his commercial enterprise. SIU argued:\n\"There is no public purpose that will be served by disclosing the information requested. The only interest that will be served is the Plaintiff’s commercial interest. Allowing the privacy rights of many individuals to be invaded in order to promote the commercial interest of another is fundamentally unjust and was not intended by the Legislature.\n***\nNames, addressed [sic], and phone numbers of individuals who have inquired about freshmen housing at SIU will tell the public nothing about the management or operation of SIU. The disclosure of this information would be a clearly unwarranted invasion of privacy.”\nLieber countered that SIU’s argument was an \"insufficient excuse for failing to provide at least a portion of the requested information, namely, the addresses.” Lieber argued that his intent in requesting the information, as shown by all of the evidence before the court, was to turn the information over to a not-for-profit entity, \"to ascertain the effectiveness of SIUC’s administration in recruiting in various areas of the state and country,” and \"to inform the individuals of other housing alternatives which may, in fact, provide a more convenient and economical alternative to on-campus housing, as well as an environment more conducive to study.” Lieber concluded his argument as follows:\n\"Further, as previously stated, the operation of an off-campus housing facility is no more a commercial enterprise than SIU’s operation of on-campus housing. In fact, SIU mandates an extensive approval process and promulgates numerous rules relating to freshman[-]approved off-campus housing, evidencing its quasi-public nature.”\nThe trial court entered an order on June 21, 1995, granting SIU’s motion for summary judgment. In explaining its order, the court stated that it \"strongly” disagreed with Lieber’s argument that his purpose in seeking the information was irrelevant. The relevant portions of the court’s order are as follows:\n\"Plaintiff seeks an economic and commercial advantage under an action and an Act (5 ILCS 140/1 et. [sic] seq.), which clearly states in its Public policy-Legislative intent (5 ILCS 140/1) section, is not intended and, to highlight this intent, further creates a specific exemption, 5 ILCS 140/7(l)(b)(i).\nThe Freedom of Information Act *** exists as a check on the government and its agencies by the citizens and '... is necessary to enable 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.’ 5 ILCS 140/1. The position taken by Plaintiff seeks a commercial financial advantage bereft of any laudatory purpose of this Act. The [Act] does not allow a party a competitive commercial advantage or gain premised on the work product of a public institution of higher learning.”\nThis appeal followed.\nII. ANALYSIS\nWe begin our analysis by noting that the parties and the trial court seemed somewhat confused by how to apply the Act to the case at bar. We intend, in this opinion, to articulate and, hopefully, clarify the specific rules for applying the Act to requests for information from public entities.\nIn American Federation of State, County & Municipal Employees (AFSCME), AFL-CIO v. County of Cook, 136 Ill. 2d 334, 341 (1990) (hereinafter AFSCME), our supreme court described the Act as \"a clearly stated statute,” which \"creates a simple mechanism whereby a public body must comply with a proper request for information unless it can avoid providing the information by invoking one of the narrow exceptions in the Act.” (Emphasis added.) Thus, we feel obliged to apply the Act according to the plain meaning of the words used by the legislature, without resort to extrinsic rules of construction, unless the meaning of the words used is unclear, making the use of construction aids necessary.\nThis court has previously set forth the standard for a public entity’s compliance with the Act. Clearly, the burden to prove that the information is exempt under the Act is upon the public body that denies a request for information.\n\"There is a presumption that public records be open and accessible, subject only to exemptions that are to be narrowly construed. [Citation.] Although section 7 of the Act provides an extensive list of exemptions to disclosure, the burden of proof is on the governmental agency to establish that the documents in question are exempt from disclosure. [Citation.] 'To meet this burden and to assist the court in making its determination, the agency must provide a detailed justification for its claim of exemption, addressing the requested documents specifically and in a manner allowing for adequate adversary testing.’ (Emphasis in original.) [Citation.]” Carbondale Convention Center, Inc. v. City of Carbondale, 245 Ill. App. 3d 474, 476-77 (1993).\nThe Act does not contemplate shifting the burden of proof to the party requesting the information. AFSCME, 136 Ill. 2d at 346. Moreover, the government agency from which the information is sought may not indirectly shift the burden of proof by alleging that the information is sought for an improper purpose. The Act \"does not require that the persons requesting the information explain their need for that information or their planned use of the information.” Family Life League v. Department of Public Aid, 112 Ill. 2d 449, 456 (1986).\nHere, both SIU and the trial court primarily focused their inquiry on Lieber’s purpose in requesting the information. The trial court’s order emphasized, almost exclusively, its finding that Lieber’s request would not inform the public about the affairs of SIU but, on the contrary, would only \"serve one very narrow purpose — to further a commercial enterprise.” Lieber argues that the trial court erred by overemphasizing his purpose in requesting the information and thereby improperly shifted the burden to Lieber to prove that his purpose in requesting the information comported with the stated public policy of the Act. We agree.\nThe proper focus for a trial court when faced with a challenge to a denial of a request under the Act is twofold. First, the court should determine if the request arguably calls for information that is covered by one of the specific exemptions listed in section 7 or, generally, if the request is for \"[(Information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy.” 5 ILCS 140/7 (West 1992). If the court determines that the release of the information would not constitute a clearly unwarranted invasion of personal privacy and that it does not fall within one of the listed exemptions of section 7, then the court should look no further but should order the government agency to produce the information immediately, \"as exemption from disclosure is not warranted.” David Blumenfeld, Ltd. v. Department of Professional Regulation, 263 Ill. App. 3d 981, 986 (1993); see also Margolis v. Director of Department of Revenue, 180 Ill. App. 3d 1084 (1989).\nWhere the court determines that one of the specific exemptions of section 7 arguably applies, then it must balance all of the relevant factors to determine if disclosure would amount to a clearly unwarranted invasion of personal privacy. The relevant factors identified in prior cases are: (1) the plaintiff’s interest in disclosure; (2) the public interest in disclosure; (3) the degree of invasion of personal privacy; and (4) the availability of alternative means of obtaining the requested information. Margolis, 180 Ill. App. 3d at 1089-90. If the court determines that the balance favors disclosure, then the information should be disclosed. If the balance tips in favor of protecting the information, the denial will be upheld.\nIn the case at bar, SIU argued that the information was exempt from disclosure under section 7(1)(b)(i), which provides for the exemption of \"files and personal information maintained with respect to *** students or other individuals receiving *** educational *** care or services directly or indirectly from federal agencies or public bodies.” 5 ILCS 140/7(l)(b)(i) (West 1992). It is clear that SIU is a \"public body” within the meaning of the Act (5 ILCS 140/2(a) (West 1992)) and that the names, addresses, and telephone numbers requested are \"personal information” in that the information will identify particular people. Margolis, 180 Ill. App. 3d at 1088.\nLieber argues that SIU did not present enough facts to establish an affirmative defense to disclosure. We agree that SIU’s amended affirmative defense was merely a conclusion without any supporting factual allegations. SIU alleged only a conclusion, \"The information sought by Plaintiff is exempt from disclosure under the Freedom of Information Act because the information, if disclosed, would constitute a clearly unwarranted invasion of personal privacy,” and cited section 7 of the Act.\nIn the Carbondale Convention Center case, this court has already declared the rules to which a government entity is subject when it denies a demand for information under the Act. Carbondale Convention Center, 245 Ill. App. 3d 474. In this opinion, we hereby readopt those rules as they apply to the case at bar. In the instant case, SIU did not meet its burden of proof to establish that the requested information was exempt from disclosure, and the trial court abused its discretion by granting SIU’s motion for summary judgment. Even taking into account the entire record before the court, including the transcripts of hearings before the court, we cannot find any factual basis, detailed or not, to meet the burden of proof or to assist the trial court in deciding that SIU was not required to provide Lieber with the requested information. Nowhere in the record is there any evidence of how this information will invade anyone’s privacy.\nOn the contrary, as Lieber’s request was for information relating to inquiries about freshman housing, it seems that his request is simply an extension of the individuals’ previous requests for information about freshman housing. Additionally, as SIU publishes a directory listing the same information about the students, it is not logical to assume that the information provided to Lieber will somehow invade the students’ privacy simply because Lieber requested the information prior to the directory’s publication.\nFinally, as Lieber points out, only a portion of his request is specifically targeted at students. The remainder of the request asks for a \"complete listing of any and all records relating to freshman housing inquiries.” These inquiries come from people other than \"students or other individuals receiving social, medical, educational, vocational, financial, supervisory or custodial care or services directly or indirectly from federal agencies or public bodies.” 5 ILCS 140/ 7(l)(b)(i) (West 1992). Thus, the trial court should have determined that the portion of the request aimed at obtaining information from individuals other than students was not exempt under the Act. As to the students themselves, as there is no evidence that the information sought will invade their privacy, the court abused its discretion by not requiring SIU to provide the information to Lieber.\nAn even more compelling basis for our reversal, however, is that the trial court appears to have improperly used the public policy section of the Act as a barrier to Lieber’s request. The public policy statement of the Act does not provide governmental entities with an alternative exemption from disclosure. A public body may validly shield itself from mandatory disclosure under the Act only by meeting its burden to prove that the information is exempt under section 7. 5 ILCS 140/7 (West 1992).\n\"[T]he legislature has declared that the 'Act is not intended to be used to violate individual privacy, nor for the purpose of furthering a commercial enterprise, or 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.’ (5 ILCS 140/1 (West 1992).) The language that immediately follows this declaration, however, is a clear statement from the legislature on the question of how the Act is to be interpreted including the exemption provisions. It states:\n'These restraints on information access should be seen as limited exceptions to the general rule that 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.’ ” (Emphasis added by Cooper court.) Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007, 1015-16 (1994), quoting 5 ILCS 140/1 (West 1992).\nWe agree with the first district in Cooper; the main purpose of the Act is to provide the public with easy access to government information, and the exemptions of section 7 and the public policy statements of section 1 should not be construed to defeat that purpose. Therefore, the trial court erred in requiring Lieber to explain his purpose in requesting the information and in denying his request on the basis that the information would further his commercial enterprise. Whether Lieber will personally gain from his access to the information should not automatically defeat his request under the Act (Cooper, 266 Ill. App. 3d at 1022-23) but is simply one part of the four-factor test set forth in Margolis, 180 Ill. App. 3d 1084.\nIf SIU had presented the court with a sufficiently detailed factual basis to meet its threshold requirement of showing that disclosure would constitute an unwarranted invasion of personal privacy, then the court would have been justified in looking at Lieber’s interest in seeking the information. However, even then, Lieber’s interest in the information would only be one part of the analysis, and the court would also have to weigh the public’s interest, the degree of invasion of personal privacy, and any alternative means of obtaining the information. Margolis, 180 Ill. App. 3d at 1089-90. In this case, SIU utterly failed to meet its burden to show that any exemption under section 7 applies to Lieber’s request. Therefore, the trial court should have found that Lieber was entitled to the information immediately.\nSince this case was erroneously decided on SIU’s second motion for summary judgment, we now consider whether this case should be remanded for further proceedings. Before SIU filed its second motion for summary judgment, the trial court considered both parties’ earlier motions for summary judgment and denied both without explanation. However, SIU’s second motion for summary judgment did not provide the court with any additional evidence to support an exemption from disclosure under section 7. Based upon the record, we find that the trial court abused its discretion by denying Lieber’s earlier motion for summary judgment. The trial court correctly denied SIU’s first motion for summary judgment but improperly granted SIU’s second motion for summary judgment. As all of the issues are matters of law for the court to decide, and based upon our authority under Supreme Court Rule 366 (155 Ill. 2d R. 366(a)(5)), we hereby reverse the trial court’s denial of Lieber’s motion for summary judgment and we remand this case to the trial court with directions to enter summary judgment for Lieber and for further proceedings consistent with this opinion.\nReversed and remanded with directions.\nWELCH and MAAG, JJ„ concur."} {"dedup_key":"pre1996-144906","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"30 ill-app-3d 525","case_name":"People ex rel. Hopf v. Barger","court_level":"Appellate","appellate_district":"2nd","year":1975,"county":null,"appellate_docket":"74-35","circuit_docket":null,"published":1,"authoring_justice":"Seidenfeld","statute":["OMA"],"exemptions_cited":[],"public_body":"City of Wheaton","requesting_party":"State's Attorney of Du Page County","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed a mandamus order requiring city officials to comply with the Open Meetings Act regarding the disclosure of minutes and notes from a closed executive session. The court held that the statutory requirement for public meetings does not violate constitutional protections and that the city's closed session violated the Act.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=144906","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:39.339306","site_category":"Closed Sessions","date_decided":"1975-07-15","site_url":"/cases/pre1996-144906/","text_url":"/case-text/pre1996-144906.txt","full_text":"The People ex rel. William V. Hopf, State’s Attorney for the County of Du Page, Plaintiff-Appellee, v. Ralph H. Barger, Mayor of the City of Wheaton, et al., Defendants-Appellants.\n(No. 74-35;\nSecond District (1st Division)\nJuly 15, 1975.\nGerald J. Brooks, of Naperville, for appellants.\nJohn J. Bowman, State’s Attorney, of Wheaton (Frank Petru and Malcolm F. Smith, Assistant State’s Attorneys, of counsel), for appellee.\n\nMr. PRESIDING JUSTICE SEIDENFELD\ndelivered the opinion of the court:\nThe People on the relation of the State’s Attorney of Du Page County petitioned the circuit court for a writ of mandamus praying that the defendants, who were the city officials of Wheaton, be commanded to comply with what is commonly called the “Open Meetings Act” (An Act in relation to meetings — Ill. Rev. Stat. 1971, ch. 102, par. 41 et seq.). The motion of the plaintiff for summary judgment based on the various pleadings and upon depositions was granted, and the writ of mandamus issued. In addition to strictly commanding defendants to comply with the provisions of the applicable statute, the court order required defendants to make available to the public any and all minutes and notes and any and all of the defendants’ depositions of a meeting of November 6, 1972, described as an executive session closed to the public. Defendants appeal.\nThe petition for mandamus included the allegations that the defendants participated in a closed meeting of the Wheaton city council on November 6, 1972; that the matters discussed concerned, in part, the annexation and zoning of property; and that tire public was excluded in violation of the law. Defendants first filed a motion to dismiss the petition which was denied. They then answered, denying the matters alleged in the petition and pleading as an affirmative defense that the meeting of November 6, 1972, was a properly noticed, properly constituted executive session of the city council and that the matters discussed, including land acquisition, were a proper subject for an executive session. The defendant mayor and the defendant councilmen were granted immunity to testify, and then- depositions were taken together with the testimony of several other witnesses.\nThereafter, the trial court dismissed Mayor Barger as a defendant because it appeared that he had not taken part in the meeting. In entering the order the court noted that there were not any notes or minutes taken at the meeting.\nThe defendants contend: that the Open Meetings Act denies equal protection of the law because it excludes the Illinois General Assembly from its coverage and also excludes closed meetings by institutions of higher education concerning campus security; that the Act is discriminatory and compels violation of the attorney-client privilege since the municipal body cannot seek the advice of counsel on the merits of contemplated litigation other than pending litigation; that since the defendants, because of lack of a quorum at the meeting, were unable to act as the city council and since the defendants were not an appointed committee of the city council, they were not properly made parties defendant; that the State’s Attorney enforced the act in a discriminatory manner; that the Act did not apply to these defendants as councilmen of a home-rule unit; and that the evidence does not support the order which was entered.\nThe plaintiff answers that the defendants lack standing to raise the constitutional issues, that other objections have been waived, that the Act is applicable and that the order, finding defendants in violation of the Act, is based on sufficient evidence.\nIt appears from the record that the only persons present at the meeting in question were the defendants William Fuller and Ronald Brown, who were councilmen of the city of Wheaton, Gerald Brooks the city attorney, the city manager, attorney Hartman Stime, and a Mr. Elliott. The meeting was held in City Manager Carrolls office. The meeting was closed to everyone except the councilmen who were present and the other persons mentioned. It appears that the group talked about the city acquiring 6 acres of property owned by Elliott for a public golf course and that the property was part of a larger tract subject to a proposed annexation agreement between the city and one KPK Corp., a development company, which was represented at the meeting by Attorney Stime. The proposed annexation agreement had been discussed at prior city council meetings which were open to the public about six or seven times. There was further evidence in the depositions that an extension of a street was discussed and that Stime made a presentation on behalf of KPK Corp. as to what the development company would do with the land if it were successfully annexed and the city rezoned the land to allow for a multiple-family development. The meeting was characterized as informational in nature and not a negotiating session.\nAlthough the parties do not raise ■ the issue directly, a preliminary question which must be examined is whether mandamus is a proper remedy under the circumstances.\nWe are aware that the statute specifically provides that where the Act is not complied with “or where there is probable cause to believe” that it will not be complied with, the court shall issue a writ of mandamus requiring that a meeting be open to the public “or issue such other appropriate order as will insure compliance” with the provisions of the Act (Ill. Rev. Stat. 1971, ch. 102, par. 43). The propriety of ordering that a mandamus writ issue when it cannot affect a meeting already held and which applies to municipal duties generally is questionable, however. As a general rule, the writ will not issue to compel a useless act or to decide questions which no longer exist merely to establish precedent. (Retail Liquor Dealers Protective Association v. Schreiber (1943), 382 Ill. 454, 459. See also Flynn v. Kucharski (1972), 53 Ill.2d 88, 91.) It will also not issue where the court would be regulating the general course of official conduct or enforcing the performance of official duties generally. Retail Liquor Dealers Protective Association v. Schreiber (1943), 382 Ill. 454, 459; People ex rel. Jansen v. City of Park Ridge (1955), 7 Ill.App.2d 331, 333.\nThe propriety of the issuance of the writ here, to the extent that it compels general compliance with the Open Meetings Act, would appear to be an attempt to regulate the general course of official conduct contrary to the cited authorities, especially since there is no indication that any future meeting by the same parties is scheduled or even contemplated. The portion of the writ which orders the publication of the notes and minutes of meeting would appear to refer to a useless act in view of the statement of the court that no minutes or notes were taken. The portion of the order making the depositions public is beyond the relief prayed (see People ex rel. Greenwell v. Board of Supervisors (1908), 234 Ill. 62, 67) and additionally would seem to refer to a useless act since the depositions became public records in the proceedings in the trial court.\nHowever, even where the relief sought in a petition for mandamus becomes moot it does not necessarily follow that the cause should be dismissed when the issues presented are of substantial public interest. (Reynolds v. Conti (1971), 132 Ill.App.2d 505, 507.) We. conclude that the case before us is an appropriate one for the consideration of declaratory or injunctive relief when the substance of the petition is emphasized over its form. (See People ex rel. Scott v. Kerner (1965), 32 Ill.2d 539, 542-543.) In Kerner, the supreme court noted that mandamus may be an appropriate means “for the simultaneous determination of issues of statutory constitutionality and the enforcement of rights initially determined to exist in the proceeding awarding the writ.” 32 Ill.2d 539, 545. See also Phelps v. Bing (1974), 58 Ill.2d 32, 35. Compare Illinois News Broadcasters Association v. City of Springfield (1974), 22 Ill.App.3d 226, 228.\nWe next consider the argument that the defendants lack the legal status or “standing” to raise the particular constitutional issues.\nWe have previously reviewed the principles which are applicable to the question of “standing” as the term is used in the sense (referred to in Baker v. Carr (1962), 369 U.S. 186, 204) that the defendants have “such a personal stake in the outcome of the controversy as to assure * * * concrete adverseness # (Phillips v. Village of Libertyville (1970), 120 Ill.App.2d 172, 181-183.) In Phillips, we note as corollary to the Baker v. Carr definition of “standing” that the court will not consider the invalidity of a provision where the party urging it is not aggrieved by its operation. (Phillips v. Village of Libertyville (1970), 120 Ill.App.2d 172, 181. See also People v. Bombacino (1972), 51 Ill.2d 17, 19-20; People v. Handley (1972), 51 Ill.2d 229, 233; People v. Reiner (1955), 6 Ill.2d 337, 341.) Another related rule is that in order for a court to consider a constitutional argument the situation to which the argument relates must be presented by the facts of the case. (People v. Braun (1910), 246 Ill. 428, 431-32.) And in addition, a litigant may not challenge a classification scheme on the basis that the classifications are discriminatory unless that litigant is a member of the class allegedly being discriminated against. (Board of Education v. Bakalis (1973), 54 Ill.2d 448, 467.) The courts, however, will not adhere to the limiting rules affecting standing where the unconstitutional features are of such a character as to render the entire act void. People v. Palkes (1972), 52 Ill.2d 472, 480-81; Edelen v. Hogsett (1969), 44 Ill.2d 215, 220.\nIn the case before us the defendants seek to challenge the statute on the grounds: that the Open Meetings Act violates the equal protection clause because it created an arbitrary, capricious and irrational classification when it subjected public officials to possible criminal sanctions for violations while exempting members of the State legislature; that the Act violates equal protection standards because it treats members of the same class differently, that is, institutions of higher education may hold closed meetings on campus security while city and high schools may not make security the subject of a closed meeting; and that the Act compels a violation of the attorney-client privilege because the public officials subject to the Act’s coverage may not hold a closed meeting, in confidence, with their attorney to discuss the merits of bringing suit, but may only discuss pending litigation.\nUnder the rules just discussed, we conclude that defendants do have standing to urge alleged constitutional defects in the Open Meetings Act to the extent that they can show that the provisions apply to them in their private or official capacity and that they have been injured by the application of the statute or suffer likely exposure to future injury.\nOn this basis we must first conclude that defendants may not be heard to argue that the statute is unconstitutional because institutions of higher learning may make security a subject of a closed meeting while cities and high schools may not. There has been no showing that defendants either privately or in their public capacity have been or ever will be aggrieved or injured by the application of this provision. Nor has there been a showing that the provision relating to security has in any way been a subject matter of this litigation.\nThere may, of course, be cases in which one who is within the class of persons affected by legislation but who can show no actual injury or grievance may be allowed to make the claim that the Act is unconstitutional “on its face” rather than as applied to him. In this case, however, we find none of the compelling reasons articulated in United States v. Baines (1960), 362 U.S. 17, 4 L.Ed.2d 524, 80 S.Ct. 519, to depart from the accepted limitations on mounting a “facial” attack on the constitutionality of a statute.\nThe defendants do, however, have “standing” to claim that the statute is unconstitutional because the individual defendants may be subject to criminal sanctions while State legislators and their committees are exempted from such sanctions. The fact that no arrests were made in this instance and that certain of the defendants testified under a grant of immunity does not assure them that they may not subject themselves to future criminal penalties under what they allege to be an unconstitutional statute. We view this as a sufficient showing of standing under the cited case.\nWe will therefore consider the merits of the contention that the statute is violative of the constitutional provisions guaranteeing equal protection embodied both in the fourteenth amendment of the Federal Constitution and in article I, section 2, of the Illinois Constitution.\nThe equal protection clause does not prevent a State from drawing lines that treat one class of individuals differently from another so long as the classifications do not amount to invidious discrimination. (Lehnhausen v. Lake Shore Auto Parts Co. (1973), 410 U.S. 356, 359, 35 L.Ed.2d 351, 354, 93 S.Ct. 1001, 1003.) Under the traditional equal protection test a legislative classification will be sustained -unless it is patently arbitraiy and bears no rational relationship to a governmental interest. (Frontiero v. Richardson (1973), 411 U.S. 677, 683, 36 L.Ed.2d 583, 589, 93 S.Ct. 1764, 1768.) The burden is on the one attacking the legislative arrangement to negative eveiy conceivable basis which might support it. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 35 L.Ed.2d 351, 358, 93 S.Ct. 1001, 1006. See also People ex rel. City of Salem, v. McMackin (1972), 53 Ill.2d 347, 363-4; People v. McCabe (1971), 49 Ill.2d 338, 340.\nUpon analysis, the exemption of the General Assembly from the provisions of the Open Meetings Act does not create a classification which amounts to invidious discrimination, nor can we conclude that it is patently arbitrary, with no rational relationship to governmental interests. As the Act was structured in 1972, a public official in violation of the Act was subject to a possible $100 fine and/or 30 days in jail. (Ill. Rev. Stat. 1971, ch. 102, par. 44.) The penalty has since been increased through the classification of a Class C misdemeanor with a possible $500 fine and/or 30 days in jail (Ill. Rev. Stat. 1973, ch. 102, par. 44). Although excluded from the Act and its penalties, the General Assembly is required under the Illinois Constitution (Art. IV, sec. 5(c)) to hold its meetings open to the public unless two-thirds of the members vote to close the meetings. And under other statutory provisions members of the General Assembly who violate their constitutional duties are subject to penalties including fine and imprisonment. (Ill. Rev. Stat. 1971, ch. 38, par. 33 — 3.) In a sense, the General Assembly is held to a greater restriction than the bodies covered by the Open Meetings Act. Before the General Assembly can hold any secret meeting it must have two-thirds of all of its members in concurrence, while the Open Meetings Act allows closed meetings on certain exempted subject matters without regard to member concurrence. We conclude that a proper governmental puipose can arguably be served by the classification and that the defendants have not succeeded in their burden to rebut the presumption that the classification is valid.\nWe next consider defendants’ contention that the Open Meetings Act compels violation of the attorney-client privilege, because it forbids the municipal attorney from advising his client in private on the merits of bringing or defending litigation except concerning “pending suits.”\nConsistent with our previous analysis we hold that defendants have standing to raise this issue so that they may have guidance in creating an ethical relationship with their attorney in the public interest without subjecting themselves to prosecution under the Act.\nThe defendants argue that the Act prevents the municipal body from having any private discussion with an attorney as to any contemplated but not yet “pending” litigation. This, they contend, creates an irreconcilable conflict between the attorney-client privilege (held applicable to municipalities in In re Sanitary District Attorneys (1932), 351 Ill. 206, 225) and the ethical obligations of lawyers to guard the confidence of their clients as mandated by the Illinois Code of Professional Responsibility adopted by the Illinois Bar Association and other lawyers groups.\nThe State’s Attorney contends that the defendants may not make this argument since there was no discussion at the closed meeting concerning a suit. In addition, he argues that any claim to the attorney-client privilege was waived when defendants held the meeting with other parties present, and that, in any event, the Open Meetings Act and the Canons are capable of concurrent operation.\nThe relationship between attorney and client does, of course, invoke policies based on the public interest even though there is no statutory declaration that communications between attorney and client are “privileged”. The statement of these policies is most often found in cases which discuss the rights to discover information under supreme court discovery rules, and they suggest that the “privilege” is to be strictly construed as an exception to the general duty to disclose. (See, e.g., Golminas v. Fred Teitelbaum Construction Co. (1969), 112 Ill.App.2d 445, 448-449.) The rules adopted by the organized bar are another recognition of the lawyer-client relationship from the viewpoint of the lawyer’s ethical and legal obligations. The basic question is one of reconciling the policy favoring the disclosure of information with the lawyer’s duty to provide effective and ethical legal representation of a client which in this case is a public body.\nThe people’s access to information is the basis of public understanding of governmental decisions so that their elected representatives will be responsive to them and under their ultimate control. But disclosure of all forms of information preliminary to decision-making may prevent the efficient administration of governmental functions and thus adversely affect the public interest. The balancing of these countervailing factors is the basic problem.\nThe legislature has articulated the policy behind the Open Meetings Act in section 1 of the Act:\n“It is the public policy of this State that the public commissions, committees, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.” (111. Rev. Stat. 1973, ch. 102, par. 41)\nTire instances in which the general policy is to be overcome, presumably so that the government can efficiently manage, are made exceptions to the Act. The exception which defendants argue makes the Act discriminatory and compels violation of the attorney-client privilege if interpreted literally states:\n“(d) * * * where a pending court proceeding against or on behalf of the particular governmental unit is being considered * » (Emphasis added.) Ill. Rev. Stat. 1971, ch. 102, par. 42.\nThe oft-stated cardinal rule of statutory construction is that a statute must be construed so as to give effect to the legislative intent. (See, e.g., People ex rel. Cason v. Ring (1968), 41 Ill.2d 305, 310.) The clear intention of the legislature expressed in the Act favors, of course, open deliberation as well as open action. (Ch. 102, par. 41.) We may not construe a statute in the way which will defeat that legislative intention. See, e.g., Niles Improvement Association v. J. Emil Anderson & Son, Inc. (1968), 93 Ill.App.2d 167, 172.\nWe must agree with defendants’ contention that “pending” cannot be reasonably interpreted to include preliminary discussion with an attorney to secure advice on either the bringing of suit or the defense of a suit which is either threatened or likely to be brought against the city. “Pending” is defined in Black’s Law Dictionary (4th ed. 1951) as “[b]egun, but not yet completed.” The traditional concept of Htigation begins in terms of “notice, pleading, trial and appeal” (See In re Estate of Stith (1970), 45 Ill.2d 192, 194), and presumably it is at that point that the litigation is “pending.”\nThis reasoning, however, does not lead us to conclude that the General Assembly intended, by excepting from the open meetings policy “pending” Htigation, to prevent any private consultation with an attorney as to foreseeable Htigation, for this would, in our view, result in the untenable further conclusion that a potential private adversary was intended to have a litigious advantage over the public. This result would not be in the public interest and would be contrary to the policy that legislation is to be for the pubHc advantage. It would further confront another publicly stated poHcy, that private communications with one’s attorney are privileged to the extent necessary for attorneys to have all of the information necessary to do their job professionaHy. This clearly requires a respecting of confidence so that they may stand on an equal strategic footing with adversary counsel.\nWe are aware that as a rule of statutory construction the expression of certain exceptions in the statute is intended to be an exclusion of all others, but this principle will not be applied where it would defeat the plainly indicated purpose of the law-making body. (City Savings Association v. International Guaranty & Insurance Co. (1959), 17 Ill.2d 609, 612.) It is a reasonable possibifity that the General Assembly did not include a reference to prospective Htigation in the exceptions because it may have assumed that the advance consultation with an attorney was not a “meeting” of the governmental body and thus not covered by the Act.\nIn People ex rel. Cooper v. Carlson (1975), 28 Ill.App.3d 569, 572, 328 N.E.2d 675, we recently held that “voluntary meetings, conferences, * * * of department heads or employees who seek to improve with dispatch their performance or function of assisting in the conduct of the people’s business” were not “meetings” as that term is used in the Open Meetings Act.\nIt should be noted that section 2 of an act in relation to “meetings” states:\n“This Section does not prevent an advisory committee appointed to provide a public body with professional consultation on matters germane to its field of competence from holding a closed session to consider matters of professional ethics or performance.” (Ill. Rev. Stat. 1973, ch. 102, par. 42.)\nSimilarly, we conclude that the legislature did not intend that consultations between the governing body and its attorney must always be conducted openly, when this could result in the public being placed at a litigious disadvantage. We conclude that advance consultation with its attorney is not a “meeting” of the governmental body as contemplated in the Act and thus is not covered by the Act. This interpretation gives to legal consultation on prospective litigation the same limited confidentality that is given under the Act to pending litigation. See Sacramento Newspaper Guild v. Sacramento County Board of Supervisors (1968), 263 Cal.App.2d 41, 55-57, 69 Cal. Rptr. 480, 490-491. See also Times Publishing Co. v. Williams (Fla. App. 1969), 222 So. 2d 470, 476-477; Channel 10, Inc. v. Independent School District No. 709 (1974), 298 Minn. 306, 215 N.W.2d 814, 825-826.\nThis does not mean, of course, that consultations by a governing body with an attorney in private may be used as a device to thwart the liberal implementation' of the policy that the decision-making process is to be open and that confidentiality is to be strictly limited. The balance between the two must always be resolved in the public interest on a case-by-case basis.\nThe circumstances of this particular case illustrate, we believe, a clear case of a lack of need for confidentiality. The defendants were obviously not seeldng to consult privately with their attorney, nor were they meeting to discuss prospective litigation, since the developer and his attorney were also present. The policy protecting to some extent communications between lawyers and clients has no real application under these facts, and the public’s right to know in an open meeting may not be thwarted on that basis alone.\nDefendants next contend that they were improperly made defendants in this action. They argue that they did not meet as a “committee” and, since only two of tire five city council members were present at the executive session, that they lacked the capacity to meet as the city council.\nThe Act places the duty to hold open meetings on any ‘legislative, executive, administrative or advisory bodies of the # # « cities # * and any subsidiary bodies * * * not limited to committees and subcommittees * * *” (Ill. Rev. Stat. 1971, ch. 102, par. 42.) This duty is not dependent upon the presence of a quorum at these meetings or limited to tire transaction of official business. The Act merely states that, when any of these bodies meet, their meeting shall be open to the public unless the matters they are discussing are exempted.\nIn view of the fact that the Act does not limit its application to meetings at which official action is or may be taken, and in view of the policy of the Act that the deliberations of public bodies be conducted openly, we conclude that if the city council of Wheaton was under a duty to make the meeting of November 6, 1972, open to the public that this duty devolved upon each of the council members since each council member who participates in a closed meeting in violation of the Act is criminally liable. (See Ill. Rev. Stat. 1971, ch. 102, par. 44.) In the case before us, however, the defendants were the only two members of the council who attended this meeting. Thus, in this action which began in mandamus they were the only necessary parties. Only those parties who have not performed a duty required by law are necessary parties to a mandamus proceedings. See People ex rel. O’Meara v. Smith (1940), 374 Ill. 286, 291.\nThe defendants further contend that the Open Meetings Act did not apply to Wheaton at the time of the meeting in question because Wheaton was a home-rule unit under the 1970 Illinois Constitution. They reason that the Open Meetings Act, having been passed prior to the 1970 Illinois Constitution, cannot restrict the powers of a home-rule unit lacking an express statement to that effect in the Act. We will not review this issue nor discuss the case cited by the defendants (Rozner v. Korshak (1973), 55 Ill.2d 430) or that cited by the plaintiff (People ex rel. Brenza v. Fleetwood (1952), 413 Ill. 530), because we have concluded that the issue has become moot. By an amendment effective October 1, 1973, the Open Meetings Act was changed to state in substance that its provisions constitute minimum requirements for home-rule units subject to the power of those units to prescribe more stringent requirements by ordinance. (Ill. Rev. Stat. 1973, ch. 102, par. 46.) Since the Act unquestionably applies to home-rule units now, it would serve no purpose to determine this issue. See Illinois News Broadcasters Association v. City of Springfield (1974), 22 Ill.App.3d 226, 228.\nThe next contention of the defendants, that their equal protection rights were violated by the alleged selective enforcement of the Act, is not properly before us. Defendants claim that although they were given no criminal or civil penalties that they have suffered damage to their reputations as public servants because of their participation in an alleged illegal meeting. We conclude that this issue was not presented to the trial court and has therefore been waived in this appeal. See Shaw v. Lorenz (1969), 42 Ill.2d 246, 248.\nFinally, in the view we have taken of the case we conclude that the judgment of the trial court is supported by the evidence and not against its manifest weight as contended by the defendants. The duty of the defendants to hold an open meeting is clear under the Act. The fact that the duty was applicable to the executive session in question is supported by the deposition of defendant Brown as to the nature of the subjects discussed which was not contradicted. The judgment of the trial court is therefore affirmed.\nAffirmed.\nGUILD and HALLETT, JJ., concur.\nSection 2, in applicable part, provides:\n“All meetings of any legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing * s * except for ® * * (d) meetings where the acquisition of real property is being considered, or where a pending court proceeding against or on behalf of the particular governmental unit is being considered, but no other portion of such meetings may be closed to the public, * * * and (g) meetings at public institutions of higher education relating to campus security or to the safety of staff and students. This Act does not apply to the General Assembly or to committees or commissions thereof.” Ill. Rev. Stat. 1971, ch. 102, par. 42.\nThe immunity which the mayor and councilmen were given was from the section of the Open Meetings Act that provided:\n“Any person violating any of the provisions of this Act shall, upon conviction, be punished by a fine of not more than $100, or by imprisonment in the county jail for not more than 30 days, or by both such fine and imprisonment.” Ill. Rev. Stat. 1971, ch. 102, par. 44.\nAlthough not cited, we are aware of People ex rel. Isaacs v. Johnson (1962), 26 Ill.2d 268, 271, and its general statement that public officials may question the constitutionality of legislation. The statement is made in the context of the rule which formerly prevailed in mandamus proceedings, that is, that a public official could not assert the unconstitutionality of a statute in an mandamus proceeding as a defense to his refusal to perform a duty. The court in Isaacs noted that this was no longer the law, stating that public officials can raise the constitutionality of a statute as a defense in a mandamus proceeding. We cannot conclude that this broad statement in the opinion was intended to give a public official an automatic status which would allow him to make every kind of a constitutional challenge to legislation unhindered by any of the traditional limitations previously expressed.\nSee Berger v. New York (1967), 388 U.S. 41, 18 L.Ed.2d 1040, 86 S.Ct. 1873, explained in United States v. Ramsey (7th Cir. 1974), 503 F.2d 524, 528-530. As noted in Ramsey a strong claim of unconstitutionl application as to the defendant was advanced in Berger, but the main thrust of the opinion was that any overbroad application of an eavesdropping statute would have a “chilling” effect on basic constitutional freedoms. We find no parallel between an eavesdropping statute and legislation which provides that in all except certain circumstances meetings of public bodies shall be open to the public.\nSee Ill. Rev. Stat. 1973, ch. 38, pars. 1005 — 5—3(d)(3) and (d)(4), 1005 — 8— 3(a)(3), and 1005 — 9—1(a)(3).\n\"Deliberation” is defined in Webster’s New International Dictionary (2d ed.) as: 1. “Act of deliberating, or a weighing and examining the reasons for and against a choice or measure; * * *. 2. A discussion and consideration by a number of persons of the reasons for and against a measure. * * ° 4. Obs. * * * A consultation”.\nBecause the statutes vary in their terms, authorities interpreting different statutes must be qualified. The cited cases appear to represent the majority view. Contra, see Laman v. McCord (1968), 245 Ark. 401, 405, 432 S.W.2d 753, 755.\nSee Kanellos v. County of Cook (1972), 53 Ill.2d 161, People ex rel. Hanrahan v. Beck (1973), 54 Ill.2d 561, 565, which we consider more relevant. Also see generally Baum, A Tentative Survey of Illinois Home Rule (Part II): Legislative Control, Transition Problems, and Intergovernmental Conflict, 1972 U. Ill. L.F. 559 581."} {"dedup_key":"pre1996-120846","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"131 ill-app-3d 376","case_name":"People ex rel. Hartigan v. Illinois Commerce Commission","court_level":"Appellate","appellate_district":"4th","year":1985,"county":null,"appellate_docket":"4-84-0394","circuit_docket":null,"published":1,"authoring_justice":"Mills","statute":["OMA"],"exemptions_cited":[],"public_body":"Illinois Commerce Commission","requesting_party":"Attorney General","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the dismissal of an Open Meetings Act complaint, holding that the case was moot because the underlying meeting had already occurred and no exceptions to the mootness doctrine applied. The court declined to address the merits of the alleged OMA violations.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=120846","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:40.105964","site_category":"Other","date_decided":"1985-03-04","site_url":"/cases/pre1996-120846/","text_url":"/case-text/pre1996-120846.txt","full_text":"THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General, et al., Plaintiffs-Appellants, v. ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellees.\nFourth District\nNo. 4—84—0394\nOpinion filed March 4, 1985.\nNeil F. Hartigan, Attorney General, of Springfield (Allen Samelson, Assistant Attorney General, of counsel), for appellants.\nHercules F. Bolos and Thomas J. Russell, Special Assistant Attorneys General, both of Chicago, for appellees.\n\nJUSTICE MILLS\ndelivered the opinion of the court:\nOpen Meetings Act.\nBut this is really a case of mootness.\nThe trial court said the suit was moot — and we agree.\nWe perceive no exceptions to the mootness doctrine present here.\nWe affirm.\nThe Attorney General filed a complaint in the circuit court on December 2, 1983, naming the Illinois Commerce Commission (Commission) and its commissioners as defendants. The complaint alleged that the Commission convened a meeting closed to the public on October 18, 1983, and discussed issues relating to economic reasonableness of completing a nuclear power station at Clinton. After the meeting, the Commission announced that it decided against conducting formal proceedings regarding the completion of the power station. The complaint further alleged that the October 18 meeting violated the Open Meetings Act (Ill. Rev. Stat. 1983, ch. 102, par. 41 et seq.) and sought the following relief: (a) a mandamus commanding the defendants to “receive and consider publicly the information upon which the Commission based its decision not to conduct a formal proceeding regarding the Clinton cancellation issue”; (b) an injunction enjoining defendants from holding future meetings in violation of the Open Meetings Act; and (c) other relief as the court deemed appropriate.\nLeave to file an amended complaint was granted on March 22, 1984. The amended complaint contained six counts. The first three counts essentially restated the allegations of the original complaint and requested the additional relief of a declaratory judgment stating that the defendants violated the Open Meetings Act. Counts IV through VI alleged that the defendants had also convened on October 13, 1983, to discuss the Clinton power station. The latter three counts alleged that this meeting also violated the Open Meetings Act. Count IV sought a declaratory judgment that defendants violated the Open Meetings Act by meeting on October 13, 1983. Count V requested a mandamus ordering defendants to receive and consider publicly the information gathered and discussed at the October 13 meeting. Count VI sought an injunction enjoining defendants from holding future meetings in violation of the Open Meetings Act.\nThe defendants filed a motion to dismiss, stating numerous grounds for dismissal, including mootness. Defendants argued that the suit was moot because the Commission announced on February 1, 1984, that the issue of the economic reasonableness of completing the Clinton power station would be docketed for a public hearing. At the hearing on the motion to dismiss, the Attorney General did not dispute that the Commission planned to conduct a public hearing of the issues relating to the power station. The trial court allowed the motion on the grounds that the issues raised by the complaint were moot. The Attorney General appeals from the order dismissing his complaint.\nAn issue is moot where no actual rights or interests of the parties remain or where events occur which render it impossible for the reviewing court to grant effectual relief to either party. (West Side Organization Health Services Corp. v. Thompson (1980), 79 Ill. 2d 503, 404 N.E.2d 208; Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 384 N.E.2d 1309; People ex rel. Newdelman v. Weaver (1972), 50 Ill. 2d 237, 278 N.E.2d 81.) Events occurring during the pendency of litigation which “dissipate” the controversy on which the litigation was founded may render the case moot. People ex rel. Newdelman v. Weaver (1972), 50 Ill. 2d 237, 278 N.E.2d 81.\nThe present litigation was founded on alleged violations of the Open Meetings Act. The express purpose of this Act is to require public bodies to conduct their deliberations and actions openly. (See Ill. Rev. Stat. 1981, ch. 102, par. 41; People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 332 N.E.2d 649.) To this end, the Act identifies the public bodies and types of meetings subject to the Act and provides the procedures by which the open meetings are to be conducted. These procedures are, of course, the heart of the Act. Remedies which the trial court may grant upon a finding of noncompliance with the Act include granting a mandamus requiring that a meeting be open to the public, ordering the public body to make available to the public portions of the minutes of a meeting which are not authorized, and declaring null and void any final action taken at a closed meeting in violation of the Act. Ill. Rev. Stat. 1981, ch. 102, par. 43(c).\nThe specific allegations in the present case were that the Commission had met twice, in closed meetings, to discuss the economic reasonableness of completing the nuclear power station in Clinton and that the Commission concluded from these meetings that it would not conduct formal proceedings in considering this issue. Presuming for the moment that the allegations stated a violation of the Open Meetings Act, we find that the Commission itself effectively remedied the violation by first voiding its decision to not conduct formal proceedings and then providing for a public hearing of the issues. This action by the Commission essentially provided the Attorney General with what he basically sought in his complaint and, thereby, dissipated the controversy upon which the litigation was founded. Accordingly, the trial court correctly found that the issues raised by the complaint were moot.\nThe Attorney General argues that, despite the Commission’s decision to conduct a public hearing, the trial court should have granted the relief sought in the complaint, namely: a declaratory judgment stating that the Commission had violated the Open Meetings Act; a mandamus directing the defendants to receive publicly the information which it considered during the closed meetings; and an injunction prohibiting the Commission from holding future meetings in violation of the Open Meetings Act.\nCertainly it would have been possible for the trial court to grant such relief. But the test for mootness, as stated in West Side Organization Health Services, is not whether it is possible to grant the relief requested, but rather, whether it is possible to grant effectual relief. As stated above, the subsequent actions of the Commission effectively provided the relief which the Attorney General had sought in his complaint. Little could now be gained by granting the Attorney General a declaratory judgment stating that the Commission had violated the Act or by ordering the Commission to publicly receive information it had considered in the closed meetings.\nWith respect to an injunction prohibiting future violations of the Act, the Attorney General has indicated in his appellant’s brief and at oral arguments that he desires to enjoin not only the recurrence of closed meetings relating to the completion of the Clinton power station, but also any and all future violations of the Open Meetings Act by the Commission. Such relief is particularly inappropriate here.\nThe foundation stone of the mootness doctrine is that a court should not resolve a question merely for the sake of setting a precedent or to govern future cases. (West Side Organization Health Services Corp. v. Thompson (1980), 79 Ill. 2d 503, 404 N.E.2d 208; People ex rel. Newdelman v. Weaver (1972), 50 Ill. 2d 307, 278 N.E.2d 81.) The injunction sought by the Attorney General would be for the sole purpose of governing future litigation. Moreover, it would be simply impractical for a trial court to draft an injunction which is completely divorced from either an existing or supposed state of facts.\nWe are aware that section 3(c) of the Act (Ill. Rev. Stat. 1981, ch. 102, par. 43(c)) specifically authorizes the trial court to enjoin future violations of the Act. However, this remedy must be understood in light of the fact that, for most public bodies, there are no exceptions to the procedural requirements of the Act. As a general matter, most public bodies are prohibited from conducting closed meetings under any circumstances. The Commerce Commission, however, stands on different footing. The Act has been amended to provide numerous exceptions for certain meetings of the Commerce Commission. The\namendment provides:\n“All meetings of public bodies shall be public meetings except for *** that portion of the deliberations for decisions of the Illinois Commerce Commission in which there is discussed any of the following: commercial, financial or other information which is obtained from a person and which is privileged, proprietary, confidential, or a trade secret; information relating solely to the internal rules, practices, investigation techniques and procedures of the Commission; information the premature disclosure of which would be likely to lead to significant financial speculation in securities of a regulated entity or to significantly endanger the stability of any regulated entity; information the premature disclosure of which would be likely to significantly frustrate implementation of a proposed Commission action; information obtained during the course of an inspection, examination or investigation which would be subject to the prohibition set forth in Section 18 of ‘An Act concerning public utilities’ approved June 29, 1921, as amended; or information specifically exempted from disclosure by federal or state law ***.” Ill. Rev. Stat., 1983 Supp., ch. 102, par. 42.\nThe Commission, unlike many other public bodies, has been and will be authorized to conduct closed meetings. A broadly worded, open-ended injunction in the hands of the Attorney General prohibiting the Commission from violating the Open Meetings Act could seriously impair the efficient operation of the Commission’s business. On the other hand, a similar injunction against a public body which is not authorized to conduct closed meetings would be relatively less detrimental to the operations of that body.\nWe have reviewed the cases cited by the Attorney General on the “public interest” exception to the mootness doctrine and find that none are analogous to the present case. Moreover, the considerations which have led to our finding of mootness far outweigh any public interest in a determination of whether the Commission violated the Open Meetings Act on October 13 and 18,1983.\nAffirmed.\nGREEN, P.J., and TRAPP, J., concur."} {"dedup_key":"pre1996-128527","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"179 ill-app-3d 161","case_name":"Gosnell v. Hogan","court_level":"Appellate","appellate_district":"5th","year":1989,"county":null,"appellate_docket":"5-87-0554","circuit_docket":null,"published":1,"authoring_justice":"Welch","statute":["OMA"],"exemptions_cited":["2(c)"],"public_body":"Board of Education for Community Unit School District Number 9","requesting_party":"David Gosnell and East Side Publications","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the denial of an injunction against a school board, holding that topics not specifically excepted under the Open Meetings Act may be discussed in closed session if they are germane and integral to an excepted topic, such as real estate acquisition. The court emphasized a practical, substantial compliance approach to interpreting the Act's exceptions.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=128527","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:40.121370","site_category":"Closed Sessions","date_decided":"1989-01-24","site_url":"/cases/pre1996-128527/","text_url":"/case-text/pre1996-128527.txt","full_text":"DAVID GOSNELL et al., Plaintiffs-Appellants, v. KELLY HOGAN et al., Defendants-Appellees.\nFifth District\nNo. 5—87—0554\nOpinion filed January 24, 1989.\nRobert B. Hoemeke and Mary B. Schultz, both of Lewis & Rice, of St. Louis, Missouri, for appellants.\nWilliam W. Schooley, of Law Offices of William W. Schooley, of Granite City, for appellees.\n\nPRESIDING JUSTICE WELCH\ndelivered the opinion of the court:\nThis appeal is from a judgment entered July 2, 1987, in the circuit court of Madison County, denying plaintiffs’ motion for preliminary injunction and petition for permanent injunction to prohibit defendants from continuing their alleged violations of the Open Meetings Act (Ill. Rev. Stat. 1987, ch. 102, pars. 41 through 46).\nThis action was initiated by plaintiffs David Gosnell and East Side Publications. East Side Publications is a publisher of a newspaper circulated in and near Granite City, Illinois, and David Gosnell is a reporter for the newspaper. The defendants are members of the Board of Education for Community Unit School District Number 9, with the exception of Gilbert Walmsley, who is the superintendent of schools. Plaintiffs filed suit seeking to enjoin defendants from holding closed meetings during which defendants allegedly discussed topics not within the exceptions enumerated in the Open Meetings Act.\nDuring the school year, the Board of Education for Community Unit School District Number 9 (hereinafter the Board or Board of Education) holds regular public meetings on the first and third Tuesday of every month. Additional meetings are arranged when necessary. A written agenda is made available to the public prior to each meeting, whether regular or special. Each agenda makes reference to executive sessions, providing in general terms that during executive session, if necessary, the Board will discuss personnel, negotiations and legal matters. The executive sessions may occur as part of either a regular meeting or a special meeting. In either case, the executive sessions are not open to the public and often last longer than that portion of the meeting which is open to the public. Plaintiffs bring into issue three separate meetings, held on December 16, 1986, January 20, 1987, and February 3, 1987, in support of their claim that the bulk of the business undertaken by the Board of Education is executed during closed sessions in violation of the Open Meetings Act.\nThe first meeting at issue occurred on December 16, 1986. A special meeting was scheduled for this date to discuss the issuance of bonds and an amendment to the district’s tax levy. During the open portion of this meeting, the employment of a certain architect was brought into issue, but was not discussed in detail because it was considered appropriate to hold the discussion of this matter for closed session. When the Board of Education voted to retire into executive session, plaintiff David Gosnell, who was attending the meeting in his capacity as a reporter, objected to the Board of Education's closed discussion concerning the hiring of an architect and stated that he considered this a violation of the Open Meetings Act. Gosnell’s objection notwithstanding, the Board continued the meeting in executive session.\nDuring the executive session on December 16, 1986, which lasted approximately 2 hours and 30 minutes, the Board and superintendent discussed several topics, two of which are brought into issue in this appeal. The first topic objected to by plaintiffs is the Board’s discussion of an architect hired to perform services for the school. The Board’s discussion focused on problems concerning work previously performed for the school by an incorporated architecture business located in Granite City, Illinois. The Board discussed whether, in performing the services under a given contract, the architecture business had completed all services for which it was hired, and whether it had done so within the time provided in the contract.\nThe relationship established between the school and the architecture business is such that the architecture business does not work exclusively for the school district, although the school entered into several contracts with this architecture business between 1960 and 1980. In performing the services under a contract with the school district, the owner of the architecture business retains complete control over the design of the particular project. During the evidentiary hearing on plaintiffs’ motion to enjoin defendants’ compliance with the Open Meetings Act, the owner of the architecture business testified that in performing his services, he does not work under the supervision of any other party.\nIn ruling on whether the discussion of the architecture business’ performance of its contracts was appropriate for executive session, the trial court found that the architecture work was discussed and evaluated by the Board in conjunction with the discussion of whether the architecture business’ service should be retained for future developments. During executive ■ session, the district director of school grounds and maintenance expressed to the Board some dissatisfaction with the work being performed by the architecture business. The trial court ruled that this was not a violation of the Open Meetings Act because it was within the exception enumerated in section 2 of the Act, which provides that information regarding appointment, employment or dismissal of an employee or officer may be considered in closed session. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe second topic plaintiffs contend was improperly discussed by the Board during the closed portion of the meeting held on December 16, 1986, is the policy goals and proposed evaluation of Superintendent Walmsley. During executive session, an evaluation form used in another school district was distributed among members of the Board to be used as a guideline in evaluating the superintendent’s goals. The trial court found that the evaluation form was discussed by the Board in expectation of further evaluations of Walmsley’s performance as superintendent of schools, and held this was not prohibited by the Act as it fell within the exception of the Act pertaining to discussion of the employment or dismissal of employees. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe second Board meeting at issue in this appeal was held on January 20, 1987. At this meeting, the agenda enumerated 41 items for consideration. During the open portion of the meeting, approximately seven items were held for executive session. The minutes of the meeting indicate that approximately 16 topics were discussed during executive session. Plaintiffs contend that eight of the topics considered in closed session should not have been so considered; instead, these eight topics, according to plaintiffs, should have been discussed in a meeting open to the public. The eight contested topics are as follows:\n(1) Contract with the Granite City School of Beauty Culture;\n(2) In-service teacher training program;\n(3) Continuing education requirement for administrators;\n(4) Policy change for reimbursement of teachers’ seeking further education;\n(5) Recall rights of dismissed teachers;\n(6) Enrollment statistics from 1967 to 1987;\n(7) Hiring of speaker; and\n(8) District staff needs.\nBeginning with the first topic listed above, plaintiffs contend defendants again violated the Open Meetings Act when they discussed in executive session the terms of a contract the school has with the owner of Granite City School of Beauty Culture. Specifically, defendants reviewed and discussed a memorandum prepared by the district director of vocational and career education which listed various beauty schools in the area and their fees for teaching students from various school districts. Since 1969 or 1970 Granite City School District has entered into annual contracts with Granite City School of Beauty Culture (hereinafter the beauty school) whereby the beauty school agrees to teach high school students beautician skills. Under the contract in existence on January 20, 1987, the students from the school district attend classes at the beauty school along with regular students of the beauty school. The school district does not dictate or retain daily control of the instruction given to the high school students at the beauty school, although the beauty school staff takes attendance, reports absentees and grades the performance of the high school students it agrees to teach.\nThe memorandum discussed by defendants in executive session was not a summary of bids from other beauty schools and was to be used for comparison only. The owner of the beauty school had requested a substantial increase in the amount paid for each student instructed. The trial court found that the district director of vocational and career education and an attorney representing the school district negotiated an agreement with the owner of the beauty school outside the Board’s closed meeting, and then returned to the closed meeting and explained the agreement. The Board approved the agreement in open session. The trial court ruled that the discussions during executive session concerning the renewal of the contract with the beauty school fell within the exception in the Act pertaining to the appointment, employment or dismissal of an employee or officer. El. Rev. Stat. 1987, ch. 102, par. 42.\nThe second topic plaintiffs argue should not have been discussed during the executive session on January 20, 1987, is a program of instruction on effective teaching. The discussion of the proposed program was of a general nature and did not relate to any teachers in particular. The school district desired an amendment to its agreement with the teachers’ union requiring nontenured teachers to perform in-service training. The Board and the school administration discussed such an amendment during executive session. The trial court found that the Board instructed the administration to prepare a memorandum proposing an amendment to the agreement between the school district and the teachers’ union. No final action was taken at this time because the amendment proposed by the administration was subject to the approval of the teachers’ union and the school district. The trial court ruled that the discussion of this topic in executive session was consistent with the Open Meetings Act. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe next topic alleged to have been improperly discussed during the January 20, 1987, executive session is whether the Board should require school district administrators to acquire a certain number of hours of continuing higher education. Although certain administrators were identified, and their qualifications discussed, the proposal itself was general in nature and included all persons in administrative positions. Again, the trial court found this discussion consistent with the Act in that it related to the appointment, employment or dismissal of an employee or officer. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe next topic plaintiffs considered inappropriate for executive session is a tuition reimbursement program which obligates the school district to reimburse teachers the expense of enrolling in college courses, provided the teacher receives a specified grade. Although individual teachers were named during the discussion, the program was discussed primarily in general terms. Superintendent Walmsley testified during the evidentiary hearing that under a new article in the contract between the teachers’ union and the school district, only teachers attending classes taught at Southern Illinois University at Edwardsville would be reimbursed. This created a problem for some teachers who were already enrolled at other schools and would be forced either to attend Southern Illinois University at Edwardsville or forfeit any tuition reimbursement. The Board discussed during executive session the possibility of extending the life of the prior agreement which reimbursed tuition paid to other schools. This would apply only to five or six teachers who were then enrolled in programs at other universities, and only so long as they remained in the same program. The trial court held that the discussion of tuition reimbursement fell within two exceptions provided in the Open Meetings Act. In addition to the exception for discussions relating to the appointment, employment or dismissal of an employee or officer, the court ruled that this also fell within the exception for collective negotiations between a public employer and its employees. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nIn the same executive session, the Board discussed the recall rights of five teachers who were offered teaching positions for one semester rather than on a full-time basis. The district and the teachers’ union had previously negotiated a method of recalling teachers based on the relative seniority of teachers who had been honorably dismissed for economic reasons. Five of the teachers so dismissed were recalled on a part-time basis. The teachers’ union threatened to initiate a grievance procedure on behalf of the five teachers recalled on a part-time basis. During executive session, the Board and the school district administration discussed the employment of the five teachers, and the administration explained to the Board the administration’s dispute with the teachers’ union. At that time, the administration presented a proposed amendment to the existing agreement under which the teachers worked. This proposed amendment was approved after the Board returned to open session. The trial court held that the discussion of recall rights fell within the “appointment, employment or dismissal of employee or officer” exception in the Act, and the “collective negotiating matters between public employers and their employees or representatives” exception in the Act. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe sixth topic alleged by plaintiffs to have been inappropriate for executive session at the January 20, 1987, meeting is the Board’s discussion of school enrollment statistics from 1967 to 1987. Superintendent Walmsley testified that the statistics were considered in assessing the school district’s future property needs. The trial court found that the statistics were discussed in relation to a possible sale of school property and ruled that this fell within the exception provided in the Act for meetings where the acquisition of real property is being considered or where the selling price of real estate is being considered by the school board of a public school district. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe next contested topic is the discussion of whether to hire a speaker to make a presentation to the teachers of the school district entitled “Positive Things About Teaching.” The proposed speaker was not an employee of the school district. The trial court held that the Board’s discussion of this topic during executive session was a violation of the Act and ruled that this violation was unintentional and of minor importance to the overall operation of the school district.\nThe final contested topic discussed at the January 20, 1987, meeting is the needs of the district staff. During closed session, Superintendent Walmsley and the Board discussed expected vacancies in certain staff positions and the need to fill those vacancies. The possibility of upgrading certain noncertified teachers to certified status was discussed, -with individual teachers being identified and discussed by name. The court held that this discussion fell within the exception in the Act for appointment, employment or dismissal of an employee or officer. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nContinuing with the third Board meeting at issue in this appeal, plaintiffs allege that certain topics discussed during the executive session of a regularly scheduled meeting held on February 3, 1987, meeting were discussed in violation of the Open Meetings Act. Similar to the previous meetings, the agenda of this meeting referred to an executive session wherein the Board would discuss any personnel, negotiations or legal matters as necessary. Of the 38 items enumerated in the agenda for Board consideration, four were held for executive session. Plaintiffs contend that the following topics should not have been discussed in closed session:\n(1) Manpower study;\n(2) Proposal to prohibit administration communication with the news media;\n(3) Request for mediation with teachers’ union; and\n(4) Extension of contract with bus company.\nTaking these topics in the order listed, the Board discussed a memorandum prepared by district administrators which recommended the transfer of certain personnel within the administrative staff. The circuit court found that this discussion involved the consideration of qualifications, personalities and skill levels of certain individuals, and therefore the discussion was appropriately undertaken during executive session. In addition to the exception for discussions of “appointment, employment or dismissal of an employee or officer,” the court noted that the discussion also came within the exception allowing testimony on a complaint lodged against an employee or officer to determine its validity. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe second topic listed began as a discussion of a special education student enrolled in a Granite City school. After discussing the student, the Board discussed the negative effects that might result from revealing to the media the discussion of the special education student. This developed further into a discussion of recent confrontations between members of the school administration and the media. These confrontations interrupted the work of the school administrators who were questioned by the media, and one Board member suggested that administrators be prohibited from talking to the news media without having the media first consult the superintendent of schools. This proposition was rejected by the Board. The trial court held that the discussion of media contacts with the school administration fell within the exception of the Act regarding the appointment, employment or dismissal of an employee or officer, and another exception in the Act which frees from the open action requirement discussion regarding “litigation when an action against, affecting, or on behalf of the particular public body has been filed and is pending in a court or administrative tribunal, or when the public body finds that such an action is probable or imminent.” Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe next contention brings into issue the Board’s decision to request mediation with the teachers’ union. During the February 3 executive session, the administration explained to the Board the advantages and disadvantages of such mediation. During executive session, and without ratification during subsequent open session, the Board agreed to make a joint request for mediation. The trial court held that the Board’s decision to request mediation was not a final action within the realm of the Open Meetings Act and ruled that the discussions fell within the collective negotiating exception provided in the Act. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe final topic alleged to have been inappropriate for discussion during executive session is the school district’s contract with a bus company. During the February 3 executive session, the superintendent and Board discussed the advantages and disadvantages of extending an existing contract between a bus company and the school district. The Board and superintendent decided to extend the then existing contract rather than accept bids from other companies. The trial court recognized that public knowledge of this decision would be disadvantageous to the school district when it negotiated with the bus company. The court ruled that this discussion fell within the appointment, employment or dismissal of an employee or officer exception of the Act. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nIn addition to the numerous topics we are asked to consider as allegedly having been inappropriately discussed during executive session, plaintiffs also contend that defendants failed to comply with the procedural requirements under the Act. In holding an executive session pursuant to the exceptions enunciated in the Open Meetings Act, it is necessary to abide by the procedural dictates of the Act. Plaintiffs assert that the three meetings discussed above are typical of all Board meetings and violative of the Act in the following measures:\n(1) The Board adjourned from each open meeting and went into executive session by referring during open session to “personnel, negotiations, and legal matters.” The subjects which the Board had voted to be held for executive session were not repeated specifically.\n(2) Topics which the Board did not specifically vote to be held for executive session were considered during executive session.\n(3) The exceptions of the Act, pursuant to which the Board discussed matters in executive session, were not cited during the open portion of the meeting.\n(4) The executive sessions last at least as long, and usually longer, than the open portion of the meeting of which they are a part.\n(5) The Board reaches decisions by consensus during executive session, without a formal roll call vote, and acts on that decision without making reference to or offering ratification of its executive session deliberations and decisions after returning to open session.\n(6) Following the Board’s closed meetings, the discussions undergone during a closed meeting are not revealed to the public.\nThe first issue we are asked to consider is whether the trial court erred in liberally construing certain exceptions provided in the Act. The court held that the exceptions encompass matters collateral to the specifically excepted subjects, so long as those matters are relevant to, bear on, and are incidental to the specifically excepted subjects. It is the plaintiffs’ contention that this interpretation emasculates the Act and is contrary to public policy, case law, and the express language of the Act. We disagree.\nThe cardinal rule of statutory construction is that a statute must be construed so as to give effect to the legislative intent. (People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 536, 332 N.E.2d 649, 658.) Statutes must be given sensible interpretation by the courts, and a strict construction means only that it must be confined to such subjects or applications as are obviously within its terms and purposes, and it does not require such an unreasonably technical construction that the words used cannot be given their fair and sensible meaning in accord with the obvious legislative intent. (DuBois v. Gib bons (1954), 2 Ill. 2d 392, 410-11, 118 N.E.2d 295, 305.) The Open Meetings Act provides that public agencies exist to aid in the conduct of the people’s business and that the intent of the Act is to assure that agency actions be taken openly and that their deliberations be conducted openly. Ill. Rev. Stat. 1987, ch. 102, par. 41.\nWhile we are aware of the ruling that the exceptions allowing closed meetings must be narrowly construed because they derogate the general policy of open meetings (Illinois News Broadcasters Association v. City of Springfield (1974), 22 Ill. App. 3d 226, 228, 317 N.E.2d 288, 290), we do not consider it judicious to apply this ruling blindly and technically such that every instance wherein a public body’s actions do not fall squarely within the language of the exceptions provided in the Act constitutes a violation of the Act. Instead, the language of the Act, and the intent of the legislature expressed therein, must be interpreted and applied on the facts of each case. See People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 538, 332 N.E.2d 649, 660.\nWhile we keep in mind that the purpose of the Act is to promote the openness of public business, we must not overlook the larger, overriding purpose of the Act within which the promotion of openness is subsumed and made a constituent part — aiding the conduct of the people’s business, or, in other words, securing public advantage. (People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 332 N.E.2d 649.) In promoting the ultimate goal of requiring public bodies to carry out their business in the manner most beneficial to the public they represent, there are occasions on which it is not to the public’s advantage that a public body carry on its business in a meeting open to the public. Therefore, it is not always possible for both of the above-stated purposes of the Act to be promoted in harmony. It is our belief that where the purposes of the Act cannot be promoted in harmony, priority should be given to the more dominant or overriding purpose.\nThis is particularly true in the instant case, where the purpose of promoting openness is not separate and distinct from the overriding purpose of promoting the ultimate goal of public advantage. Openness is in most circumstances an element fundamental in furthering public advantage; however, in some instances openness simply prevents or defeats public advantage.\nFor example, consideration of topics concerning matters such as personal information, bargaining position and negotiating strategy makes it necessary that a public body meet in private, lest it run the risk that the business undertakings will be rendered, for all practical purposes, ineffective and meaningless. Public knowledge of their officials’ intentions and actions resulting from compulsory public deliberative sessions when considering matters such as the purchase of real estate would destroy any advantage to be gained from negotiation and work a severe detriment upon the officers and the public they represent. (Collinsville Community Unit School District No. 10 v. Witte (1972), 5 Ill. App. 3d 600, 603, 283 N.E.2d 718, 720-21.) Likewise, forcing public officers to discuss sensitive issues in meetings open to the public may result in these topics being intentionally overlooked, at the public’s expense. Premised by a familiarity with the common use of discretion which results in many sensitive issues being better left alone, especially when the audience is large and confidence is wanting, consider the negative effects resulting from open discussion of personal problems that might impede upon the work place of a public office, such as alcohol abuse, tardiness, poor hygiene or cigarette smoking. While these problems might be resolved if the appropriate public body were able to discuss the matter freely, it is unlikely that this will occur when such matters cannot be discussed in confidence. As a result, work quality continues to wane, at the public’s expense.\nRestricting public officials’ ability to discuss sensitive issues freely may also breed contempt. The supreme court in People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 414 N.E.2d 731, recognized that there are obvious problems of enforcement inherent in the Act. (83 Ill. 2d at 202, 414 N.E.2d at 735.) The facts in Difanis can be summarized, for the limited purpose of this discussion, as a city council holding an informal caucus prior to a regularly scheduled meeting in order to discuss some of the matters which were to be considered at the upcoming meeting. A dispute over whether the informal caucus was actually a meeting within the scope of the Act ensued. In confronting the problem of determining what constitutes a “meeting” in terms of the Act, the Difanis court quoted Sacramento Newspaper Guild, Local 92 v. Sacramento County Board of Supervisors (1968), 263 Cal. App. 2d 41, 50-51, 69 Cal. Rptr. 480, 487, which stated in part that “ ‘[a]s operative criteria, formality and informality are alien to the law's design, exposing it to the very evasions it was designed to prevent.’ ” (83 Ill. 2d at 200, 414 N.E.2d at 734.) In Difanis the supreme court ruled that, regardless of the informal or formal appearance, officials are required, pursuant to the Act, to speak of public business with their fellow officials only when they are in an open forum. (83 111. 2d at 210, 414 N.E.2d at 739.) The supreme court adopted the reasoning of the appellate court in Difanis in holding that public officials’ desire to consult privately must give way to the open conduct of the public’s business “or else the people risk having their business done in secret, with the possibility that private deals will supplant the public interest.” 83 Ill. 2d at 211, 414 N.E.2d at 739, citing People ex rel. Difanis v. Barr (1979), 78 Ill. App. 3d 842, 845, 397 N.E.2d 895.\nIn the case before us, we are not asked to consider whether the school Board evaded the proscriptions of the Act by meeting informally, but rather, whether the Board violated the Act by discussing during executive session matters not excepted in the Act, and whether the Board failed to comply with the formal requisites of the Act. We are cautious to observe and protect the same public interest that the dictates of Difanis place in high regard, and we interpret the Act such that its application will not choke and inhibit the Board to the extent that its duties cannot be fulfilled. We recognize the delicate balance between interpreting the Act too broadly, thereby running the risk that the public interest will take second seat to the interest of private individuals, and interpreting the Act too narrowly, thereby overwhelming the public officials with time-consuming formalities and public exposure in sensitive areas. Therefore, we agree with the holding that the Act only requires that a public body “substantially” comply with the Act’s provisions (Argo High School Council of Local 571, IFT, AFT, AFL-CIO v. Argo Community High School District 217 (1987), 163 Ill. App. 3d 578, 583, 516 N.E.2d 834, 837.) Accordingly, we are unable to find that the trial court erred in not interpreting the Act in the strict manner proposed by plaintiffs.\nTurning to other issues raised by plaintiffs, we are unable to find that the trial court erred in interpreting the term “employee” as used in the exceptions provided in the Act. (Ill. Rev. Stat. 1987, ch. 102, par. 42.) Plaintiffs contend that the court erred in interpreting “employee” to include independent contractors. Construing the Act and the exceptions provided therein, giving plain and sensible meanings to the words used by the legislature, and interpreting the Act’s provisions consistently with the expressed intention of the legislature, we find that the exception providing that closed meetings are permissible to consider information regarding appointment, employment or dismissal of an employee or officer may properly be interpreted to include independent contractors where the facts of a given case make such a determination consistent with the underlying intention of the Act.\nThe Act does not elaborate qualifications or definitions for determining whether someone is an employee or officer. Strictly construed in a legal sense, the term employee does not include independent contractors, and the two classifications may be distinguished by considering the manner and method in which anyone so classified performs the duties for which they are hired. (Kouba v. East Joliet Bank (1985), 135 Ill. App. 3d 264, 481 N.E.2d 325.) However, we find it unnecessary in the present case to delve into a determination of whether certain speakers, architects, beauty school operators and other persons hired by the school district performed services in the capacity of employee or independent contractor. Instead, we focus on the intention of the legislature in excepting discussions of matters relating to employment and decide whether the legislature intended a strict legal construction of the term employee so as not to include independent contractors.\nIn the instant case, we are not persuaded that there exists a compelling reason to distinguish between an employee and an independent contractor for purposes of determining whether the Board may properly discuss in closed session the hiring, performance or other matters relating to a person or persons in either classification. In balancing the public’s right to know against the Board’s need to discuss matters in confidence, we find that the narrow, legal definition of employee urged by plaintiffs is inconsistent with the rule that in construing a statute the words must be given their fair and sensible meaning in accord with the legislature’s intent. Taking a more workable approach, we find that the legislature did not intend to exclude independent contractors from the exception providing for discussion of information regarding the appointment, employment or dismissal of employees. The need to discuss in privacy the hiring and performance of an independent contractor is generally the same as that for any other employee. In fact, because an independent contractor may be hired relatively frequently, and usually under a new and separate contract for each job, there is arguably a greater need to preserve confidence in discussing such hiring because each contract may be approached with a varied strategy, whereas, on the average, there is less need for negotiating strategy when hiring personnel. Therefore, we are unable to find that the court erred in finding that the exception for employees and officers also applies to independent contractors under the facts of this case.\nThe next issue raised by plaintiffs is that the court erred in concluding that the superintendent and board did not violate the Act when they considered during executive session educational goals, policy and programs and school district statistics. Plaintiffs argue that the host of policy issues that were discussed in executive session related to the conduct of the people’s business and therefore should have been discussed in open session. Superintendent Walmsley testified at the evidentiary hearing conducted in the trial court that he and the Board discussed in executive session his goals as superintendent. Because the district had been in turmoil for over a year, goals were set for the superintendent’s office in attempt to improve his performance and relationship with the school district in general. Plaintiffs concede that, because Walmsley is an officer of the school district, the discussion of matters relating to his employment may be held in executive session. Plaintiffs dispute the propriety of the formulation during executive session of general policy, such as the goals of the superintendent’s office. Plaintiffs assert that even if discussion of the superintendent’s goals arose in the context of an evaluation of Walmsley’s particular job performance, the Act requires that only those portions of any meeting expressly enumerated in the exceptions to the open meeting requirement may be discussed during executive session. Therefore, according to plaintiffs, the discussion of the superintendent’s goals should have been separated from any particular complaint regarding Walmsley’s performance and discussed in open session.\nIn another subject falling under this issue, plaintiffs argue that the exception for “collective negotiating matters” must be limited to preparation by the Board for actual negotiations with the various unions; the possibility that unions may take advantage of information revealed in open meetings is irrelevant. The possibility that matters discussed during open session may be used by the unions to the people’s detriment is very relevant in considering whether the legislature intended that particular topics be discussed openly.\nFurther, not only would such a strict interpretation of the Act work to the public’s disadvantage, thereby undermining the intentions of the Act, it also results in time-consuming technicalities for which the benefit does not offset the burden. Common experience dictates that discussions of matters relating to complaints against an officer and goals developed in attempting to resolve the complaints can become one and the same. An attempt to discuss only the complaints in closed session and then the proposed goals in open session would be tedious and frustrating when the goals are in direct response to and interrelated with the complaints they are intended to resolve. In order to discuss the goals effectively, it is necessary to consider simultaneously the complaints which prompted the need for the goals. The complaints present problems, and the goals the intended solutions. Forcing the Board to discuss the solutions in public would result in one of two equally unfavorable outcomes. First, the Board would run the risk of exposing personal information regarding the superintendent to the public. In discussing the solutions in public, it is likely that reference will be made to the problems. Second, if the Board were to attempt discussion of the solutions without making reference to the problems, the discussion would be inhibited by the precaution given to avoiding the mention of confidential information in public. Neither of these results is consistent with the Act’s purpose of protecting the public’s business and therefore should not be promoted.\nPlaintiffs’ next issue presented to this court is that the trial court erred in finding that a joint request for mediation was not a final action under the Act. In their closed meeting on February 3, 1987, the Board and superintendent discussed the advantages and disadvantages of engaging in mediation to resolve an impasse in contract negotiations between the Board and the secretaries’ union. Plaintiffs argue that this constituted a “final action” within the contemplation of the Act and should have been discussed in open session, or, at a minimum, reported as a final action in open session. We disagree.\nThe section of the Act which enumerates the exceptions to the open meeting requirement also expressly states that no final action may be taken at a closed meeting. (Ill. Rev. Stat. 1987, ch. 102, par. 42.) In the instant case, the Board chose mediation as an alternative to unsuccessful negotiations with the secretaries’ union. The circuit court found this to be within the exception for discussion of “collective negotiating matters between public employers and their employees or representatives.” (Ill. Rev. Stat. 1987, ch. 102, par. 42.) Plaintiffs argue to the contrary that the Board’s decision to request mediation was unilateral and not a collective negotiation falling within this exception. We agree with the circuit court and find that the request for mediation was part of the process of reaching a final action with the secretaries union. Mediation, similar to negotiating, is not an end in itself, but rather, a means to an end. Negotiations and mediations are made up of many “unilateral” decisions, such as what to offer or counteroffer, and to hold that each of the unilateral strategical decisions that make up the constituent parts of a negotiation is in and of itself a final action is unreasonable.\nNext, plaintiffs argue that the court erred in holding that the superintendent and Board did not violate the Act when it discussed whether to prohibit district administrators from speaking with the media. The underlying action was initiated on January 28, 1987, and the allegedly violative discussion was had on February 3, 1987. Plaintiffs contend that the trial court wrongfully categorized this discussion under the exception for discussion of “litigation when an action against, affecting, or on behalf of the particular body has been filed and is pending in a court or administrative tribunal.” Although the discussions were of a general nature, attending to the relationship between the newspaper and the Board and attempting to resolve plaintiffs’ attempts to question school administrators, we find that a fair interpretation of the Act brings these discussions within the exception of the Act.\nThe final issue requires that this court determine whether the Board failed to comply with the procedural requirements of the Act. We find that the Board substantially complied with the Act consistent with Illinois law. (Argo High School Council of Local 571 IFT, AFT, ALF-CIO v. Argo Community High School District 217 (1987), 163 Ill. App. 3d 578, 516 N.E.2d 834; Williamson v. Doyle (1983), 112 Ill. App. 3d 293, 445 N.E.2d 385.) For example, plaintiffs complain that the Board’s inclusion in the agenda preceding each meeting of a general reference to “Executive Session — personnel, negotiations and legal matters” is insufficient to give notice to the public of what topics will be discussed during closed session. However, the Act does not require notice in the agenda of topics to be considered in closed session. The Act provides:\n“At any open meeting of a public body, for which proper notice under this Act has been given, the body may, without additional notice under Section 2.02, hold a closed meeting in accordance with this Act. Only topics specified in the vote to close under this Section may be considered during the closed meeting.” (Ill. Rev. Stat. 1987, ch. 102, par. 42a.)\nAccording to the record, the topics to be discussed in closed session were included in the minutes of each meeting prior to the Board’s voting to go into closed session. In instances when a topic not specifically held for closed session was discussed during closed session, the relationship between the items held for closed session and the items not specifically held for closed session is such that the Board’s discussion of these items is in compliance with the Act. It is to be expected that during the discussion of a given topic, other related topics germane to the primary topic may be brought into discussion. In instances when a related topic plays an integral part in the discussion of the original topic to be considered in closed session, business practicality and efficiency dictate that the related topic be discussed along with the primary topic. For example, the trial court held that school enrollment statistics, a topic not falling within any exception to the Act, could be discussed during closed session when discussed collateral to the discussion of offers to purchase real estate — a topic excepted under subsection (c) of section 2 of the Act. This section provides that “meetings where the acquisition of real property is being considered or where the selling price of real estate is being considered by the school board of a public school district” need not be open to the public. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nConstruing the exceptions to the Act applying the fair and sensible statutory interpretation stated in DuBois above, and applying the substantial compliance requirement stated in Argo, we are unable to find merit in plaintiffs’ arguments, and we therefore affirm the judgment of the trial court.\nFor the foregoing reasons, the judgment of the circuit court of Madison County is affirmed.\nAffirmed.\nHARRISON and GOLDENHERSH, JJ., concur.\nJustice Goldenhersh replaces Justice Calvo, who was elected to the Illinois Supreme Court after this cause was taken under advisement."} {"dedup_key":"pre1996-136213","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"229 ill-app-3d 459","case_name":"Workmann v. Illinois State Board of Education","court_level":"Appellate","appellate_district":"2nd","year":1992,"county":null,"appellate_docket":"2-91-0889","circuit_docket":null,"published":1,"authoring_justice":"Bowman","statute":["FOIA"],"exemptions_cited":[],"public_body":"Illinois State Board of Education / Joint Committee on Secondary and Elementary School Sports","requesting_party":"Francis Workmann","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that a plaintiff does not 'substantially prevail' under the FOIA for the purpose of recovering attorney fees when the requested records do not exist and the public body was under no legal obligation to create them. Consequently, the denial of attorney fees was affirmed.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=136213","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:40.631494","site_category":"Fees & Burdensome Requests","date_decided":"1992-05-21","site_url":"/cases/pre1996-136213/","text_url":"/case-text/pre1996-136213.txt","full_text":"FRANCIS WORKMANN, Plaintiff-Appellant, v. ILLINOIS STATE BOARD OF EDUCATION et al., Defendants (Emil Jones, Jr., et al., Defendants-Appellees).\nSecond District\nNo. 2—91—0889\nOpinion filed May 21, 1992.\nJohn T. Jursich, of North Chicago, for appellant.\nRoland W. Burris, Attorney General, of Springfield (Kathleen McCabe and Deborah L. Ahlstrand, Assistant Attorneys General, of Chicago, of counsel), for appellees.\n\nJUSTICE BOWMAN\ndelivered the opinion of the court:\nPlaintiff, Francis Workmann, appeals from an order of the circuit court which denied his motion for the imposition of attorney fees against defendants, Emil Jones, Jr., and Richard Mulcahey. Pursuant to the Freedom of Information Act (Act) (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.), plaintiff sought an injunction to compel defendants to deliver certain records. The issue in this appeal is whether the trial court erred in determining that plaintiff did not “substantially prevail” in his action so as to warrant the award of attorney fees to plaintiff under section ll(i) of the Act (Ill. Rev. Stat. 1989, ch. 116, par. 211(i)).\nWe will summarize briefly only the relevant facts. Following a bench trial, the court issued its findings in a written order, as follows:\n“1. That a Joint Committee on Secondary and Elementary School Sports was created for the purpose of studying and making recommendations to the General Assembly on sports and athletic programs conducted in the States [sic] Secondary and Elementary Schools, by reason of a Joint Resolution Number 166, passed by the Illinois Senate and House of Representatives ***.\n2. That Senator Emil Jones and Representative R. Mulcahey were made Co-Chairman [sic] of said Joint Committee.\n3. That considerable public money was used to study the abuses of school sports in the Secondary and Elementary Schools in Illinois, as a result of said Joint Resolution.\n4. That evidence was introduced at five hearings held throughout the State of Illinois by the Joint Committee; and, that the evidence and the contents of the records of same, were of clearly significant interest to the general public.\n5. That various outside groups had endeavored to influence the decisions and recommendations of the Joint Committee.\n6. That the Joint Committee was unable to make a decision or make recommendations to the House and the Senate by reason of the Joint Committee being unable to agree on any recommendations, and accordingly the Joint Committee never made a final report to the House and Senate.\n7. That by reason of the Joint Committee not asking for an extension of time to make a final report, and further by reason of the House and Senate not extending time for the extensions of same, the Joint Committee ceased to exist by operation of law on June 30,1987.\n8. That all of the records of the hearings in the personal possession of Senator Emil Jones, or in the possession of the Senate Records Keeper could not be found and accordingly are deemed to be lost.\n9. That the Plaintiff had made an appropriate request, as required under the Freedom of Information Act [citation], and that said requests were received by Senator Emil Jones and Representative R. Mulcahey, all as contemplated by said Act.\n10. That Senator Emil Jones and Representative R. Mulcahey furnished no records to the Plaintiff, and failed to advise the Plaintiff as to why the records were not furnished; and, further failed to advise the Plaintiff that he had a right to Administrative Appeal under the statute; that Senator Emil Jones and Representative R. Mulcahey had not contacted the Plaintiff in any manner whatsoever, by letter, telephone or otherwise after receiving the Plaintiff’s request for information.\n11. That the Plaintiff had exhausted his administrative remedies, and accordingly this Court has jurisdiction of this cause.\n12. That by reason of the records being lost, which is the subject matter of this cause, there is no remedy to afford to the Plaintiff, as the Court can not [sic] compel the performance of an impossible act, namely the furnishing of lost records.”\nThe court denied plaintiff’s request for an injunction. The court also granted plaintiff leave to dismiss voluntarily his claim against the Illinois State Board of Education and Leininger.\nWithin 30 days of the order, plaintiff filed a petition for the imposition of attorney fees against defendants. Plaintiff alleged that he had “substantially prevailed” in the proceeding and was therefore entitled to attorney fees to be paid by defendants pursuant to section ll(i) of the Act. There is no transcript or bystander’s report from the hearing on the petition. The court denied the petition because it found that “plaintiff did not substantially prevail on the merits of this cause.” Although the record is unclear regarding whether the count against Leininger and the Board was ever dismissed, the order provided the required language regarding appealability as set forth in Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Plaintiff’s timely appeal followed.\nPlaintiff contends that the trial court erred in failing to award him attorney fees. In support of this contention, plaintiff cites to section ll(i) of the Act, which provides that a court may award attorney fees to a plaintiff who “substantially prevails” on a claim under the Act. (Ill. Rev. Stat. 1989, ch. 116, par. 211(i).) According to plaintiff, he “substantially prevailed” in his cause, despite the trial court’s inability to impose an injunction, because defendants refused to furnish the records and did not inform plaintiff that the records were lost. Plaintiff argues that, by denying his request for fees, the trial court has encouraged public officials who refuse to furnish records requested pursuant to the Act to claim that the records in question were lost.\nDefendants respond that plaintiff did not “substantially prevail” on the merits and, therefore, is not entitled to attorney fees under section ll(i) of the Act (Ill. Rev. Stat. 1989, ch. 116, par. 211(i)). Defendants make several arguments in support of their assertion; however, most of these arguments are irrelevant or are waived because defendants did not cross-appeal from the trial court’s finding that plaintiff exhausted his administrative remedies (see People ex rel. Hartigan v. Knecht Services, Inc. (1991), 216 Ill. App. 3d 843, 852-53). Defendants’ point regarding the purpose of the fee award has merit, however. As defendants argue, awarding attorney fees pursuant to section ll(i) of the Act for purposes of punishing a public body is improper. The fee provision of the Act was not “intended as either a reward for successful plaintiffs or as a punishment against the government.” Hamer v. Lentz (1989), 132 Ill. 2d 49, 62.\nWe note, initially, that the trial court found that plaintiff had not “substantially prevailed.” Plaintiff has not argued why the trial court’s finding in this regard is erroneous, but he has merely ignored this finding. Plaintiff argues that the court could not have found that defendants had a reasonable basis in law for withholding the records. Plaintiff evidently is relying on section 7 of the Act, which establishes exceptions a public body may invoke to refuse to furnish documents. (See Ill. Rev. Stat. 1989, ch. 116, par. 207.) The problem which plaintiff fails to account for is that, although there was no reasonable basis in law for the refusal to furnish the records, defendants had a reasonable basis in fact for the refusal, namely, the records did not exist because they were lost.\nNeither party cites any authority regarding a request for lost or destroyed documents, nor has our research uncovered any such Illinois cases. We turn, then, to Federal cases which interpret the Federal Freedom of Information Act (Federal Act). (Hamer, 132 Ill. 2d at 58.) In Kissinger v. Reporters Committee for Freedom of the Press (1980), 445 U.S. 136, 63 L. Ed. 2d 267, 100 S. Ct. 960, the United States Supreme Court held that a public agency did not “withhold” documents that were not in its possession as the Federal Act “does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.” Kissinger, 445 U.S. at 150-52, 63 L. Ed. 2d at 281-82, 100 S. Ct. at 968-69; see also National Security Archive v. Archivist of the United States (D.C. Cir. 1990), 909 F.2d 541.\nSimilarly, in Safecard Services, Inc. v. Securities & Exchange Comm’n (D.C. Cir. 1991), 926 F.2d 1197, 127 documents that were the subject of a request under the Federal Act mistakenly were destroyed. The district court granted the agency’s motion for summary judgment. The reviewing court noted that an agency is not required to recreate a document that no longer exists, explaining, “[i]f the agency is no longer in possession of the document, for a reason that is not itself suspect, then the agency is not improperly withholding that document.” Safecard Services, 926 F.2d at 1201.\nApplying these principles to the facts herein, we conclude that defendants did not refuse to furnish the documents because they did not have possession of them. Plaintiff has not appealed the court’s denial of the injunction; thus, he cannot challenge the implicit finding that the reason the records cannot be found is not suspect. Moreover, there was no evidence to suggest that the records were lost after plaintiff made the request for them.\nAside from the above authority, we will also consider the statutory authority applicable in this cause and apply the standard rules for statutory construction. The objective of statutory construction is to ascertain and give effect to the legislature’s intent in enacting the statute. (People ex rel. LeGout v. Decker (1992), 146 Ill. 2d 389, 394.) Where the language of the statute is clear and unambiguous, the court must enforce the statute as enacted without resorting to other aids of statutory construction. Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1991), 146 Ill. 2d 175, 207.\nThe records of a hearing before a commission of the General Assembly are governed by “An Act in relation to hearings before commissions” (Ill. Rev. Stat. 1989, ch. 63, par. 13.1 et seq.). Section 4 of that act provides, in relevant part:\n“An accurate record *** may be kept of the proceedings of any hearing. Upon his written request *** a witness shall be furnished at a reasonable charge with a transcript of the record insofar as it pertains to him or his testimony, if such record was taken at a public hearing ***.” (Ill. Rev. Stat. 1989, ch. 63, par. 13.4.)\nIn most circumstances, the word “may” is used in the permissive sense (In re Marriage of Freeman (1985), 106 Ill. 2d 290, 298), and this meaning fits within the context of section 4. We conclude that the making of a record of a hearing before a commission of the General Assembly is not mandatory.\nIf the commission was not required to make a record in the first instance, it could not be found liable under the Freedom of Information Act for refusing to furnish a copy of the nonexistent record to plaintiff, since there is no duty on a public body to create a record for purposes of the Act (Kenyon v. Garrels (1989), 184 Ill. App. 3d 28, 32). By analogy, then, it is clear that since the commission was not required to make a record, its refusal to furnish a lost record which it was not required to make could not violate the Act.\nThus, under either the applicable Illinois statutory sections or Federal case law, the trial court correctly found that plaintiff did not “substantially prevail” on the merits and was therefore not entitled to attorney fees under section ll(i) of the Act (Ill. Rev. Stat. 1989, ch. 116, par. 211(i)).\nThe judgment of the circuit court is affirmed.\nAffirmed.\nINGLIS, P.J., and DUNN, J., concur."}