Green v. Chicago Police Department, 2022 IL 127229

Background

On November 18, 2015 Charles Green submitted a FOIA request to the Chicago Police Department (CPD) for all closed complaint register (CR) files relating to Chicago police officers since 1967.
A May 2015 preliminary injunction entered in related Fraternal Order of Police (FOP) litigation barred CPD from releasing CR files older than four years, and that injunction was in effect when CPD constructively denied Green’s request by failing to respond within FOIA’s five-business-day window.
The injunction and an arbitration order to destroy files were later vacated on appeal and review, while Green’s FOIA enforcement suit was pending.
The parties cross-moved for summary judgment over whether the vacatur of the injunction during litigation made CPD’s earlier withholding improper.
The Illinois Supreme Court held that FOIA review should assess whether records were properly withheld as of the time the public body asserted the exemption/denied the request (the “time-of-request” rule); the appellate judgment was affirmed and the circuit court’s judgment reversed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a FOIA withholding should be judged by circumstances at the time of judicial review or at the time the agency denied the request	Court should account for changed circumstances (vacated injunction) and evaluate withholding under present conditions	Court should evaluate withholding as of the time the agency asserted the exemption/denied the request	Time-of-request: evaluate whether records were exempt when the denial was made unless an exemption states otherwise
Whether a valid court injunction at time of denial immunizes the agency from liability even if vacated later	An expired injunction has no present legal effect; vacatur makes records releasable without refiling	A lawful court order at time of denial takes precedence over FOIA and supports the withholding	An injunction in effect at the time of the denial made withholding proper; subsequent vacatur is immaterial to whether withholding was improper at that time
Whether courts should require agencies to monitor and reprocess past FOIA denials for up to five years (statute of limitations period)	Forcing refiling wastes time and places requester at back of queue; court should order production when injunction is vacated	Requiring ongoing reprocessing is impractical and would create endless re-review obligations and inequities for other requesters	Reprocessing/ongoing monitoring would undermine FOIA’s prompt-production goals; requester may refile when circumstances change
Whether agency can be liable for attorney fees or penalties where denial was proper when made but later became unjustified	Agency should be liable because records later became releasable and delay was prejudicial	Agency should not be penalized where its initial denial complied with law then in effect	Court should not impose fees or penalties for denials that were lawful at the time they were made; vacatur later does not retroactively make the earlier withholding improper

Key Cases Cited

Bonner v. United States Dep't of State, 928 F.2d 1148 (D.C. Cir.) (rejecting endless reprocessing based on postresponse events)
Lesar v. United States Dep't of Justice, 636 F.2d 472 (D.C. Cir.) (declining to apply changed classification scheme retroactively to prior denials)
State News v. Michigan State Univ., 735 N.W.2d 20 (Mich.) (measure exemption at time agency asserts it)
Florez v. Central Intelligence Agency, 829 F.3d 178 (2d Cir.) (limited departure from time-of-request rule where postresponse disclosures undermined original justification)
New York Times Co. v. United States Dep't of Justice, 756 F.3d 100 (2d Cir.) (considered postresponse public disclosures that went to the heart of the dispute)
Pielet v. Pielet, 2012 IL 112064 (Ill.) (summary judgment standard)
In re Appointment of Special Prosecutor, 2019 IL 122949 (Ill.) (FOIA requester must have injunction-modifying court alter order blocking disclosure when injunction still in place)