Kalven v. The City of Chicago
7 N.E.3d 741
Ill. App. Ct.2014Background
- Jamie Kalven submitted FOIA requests (Nov. 16, 2009) to Chicago Police Department (CPD) for: (1) "Repeater Lists" (RLs) identifying officers with many complaints and (2) Complaint Register files (CRs) for investigations of alleged misconduct against specified officers. CPD denied the requests.
- Kalven sued under FOIA (filed Dec. 22, 2009). Parties cross-moved for summary judgment; the trial court ordered disclosure of RLs but held CRs exempt and denied attorney fees.
- RLs were compiled from CPD databases and earlier federal discovery (Bond and Moore litigation). CRs are investigative files created during CPD complaint investigations (citizen complaints + investigatory materials).
- Defendants argued CRs are exempt under FOIA §7(1)(n) (records "relating to" adjudications) and §7(1)(f) (deliberative process). They also argued RLs are not public records or are protected by discovery/protective orders.
- Appellate court applied the FOIA version in effect at decision, held RLs are public records and disclosable, reversed the CRs exemption ruling, and remanded for in camera review of any deliberative redactions and reconsideration of attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which FOIA version governs | Apply 2009 version (in effect when request denied) | Apply 2010 amended FOIA (in effect at court decision) | Court applies the statute in effect at time of decision (majority); Justice Delort concurred but would apply vesting rule to 2009 version |
| Are CRs exempt under §7(1)(n) (records "relating to" adjudications) | CRs are investigatory public records and not exempt | CRs "relate to" disciplinary adjudications and thus are exempt | CRs are not exempt under §7(1)(n); "adjudication" read narrowly and "related to" construed narrowly for FOIA |
| Are CRs exempt under §7(1)(f) (deliberative-process) | Only discrete deliberative portions (if any) can be withheld; factual material must be disclosed | Entire CR files may be withheld as predecisional/deliberative | Rejected wholesale withholding; allowed possibility of selective redactions — remand for in camera review if defendants claim specific exemptions |
| Are RLs public records and disclosable | RLs are public records prepared/used/possessed by CPD and must be disclosed | RLs are not public records (created for litigation) or protected by federal protective orders/discovery confidentiality | RLs are public records under FOIA §2(c) and must be disclosed; protective orders did not shield FOIA disclosure |
| Attorney fees under FOIA §11(i) | Kalven substantially prevailed and is entitled to fees | Not substantially prevailed because mixed result | Trial court's denial of fees reversed for reconsideration on remand (after CR ruling change) |
Key Cases Cited
- Bond v. Utreras, 585 F.3d 1061 (7th Cir.) (reflects federal proceedings where RLs were produced and notes FOIA litigation possible)
- Gekas v. Williamson, 393 Ill. App. 3d 573 (Ill. App. 2009) (prior appellate decision construing exemptions for complaint records)
- People ex rel. Madigan v. Kinzer, 232 Ill. 2d 179 (Ill. 2009) (statutory construction de novo; plain-meaning rule)
- Stern v. Wheaton-Warrenville Comm. Unit Sch. Dist. 200, 233 Ill. 2d 396 (Ill. 2009) (FOIA to be liberally construed; exemptions narrowly)
- Wakulich v. Mraz, 203 Ill. 2d 223 (Ill. 2003) (legislative acquiescence principle)
- BlueStar Energy Servs., Inc. v. Illinois Commerce Comm’n, 374 Ill. App. 3d 990 (Ill. App. 2007) (confidentiality assurances in regulatory discovery and trade-secrets context)
- Goff v. Teachers’ Retirement Sys., 305 Ill. App. 3d 190 (Ill. App. 1999) (discussion of broad phrases like "relating to" in a different context)