JOHN Q. KELLY, Plaintiff-Appellant, v. THE VILLAGE OF KENILWORTH, THE ILLINOIS STATE POLICE, THE COOK COUNTY STATE‘S ATTORNEY‘S OFFICE, and THE COOK COUNTY MEDICAL EXAMINER, Defendants-Appellees.
No. 1-17-0780
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
June 21, 2019
2019 IL App (1st) 170780
JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Hoffman and Hall concurred in the judgment and opinion.
Fifth Division. Appeal from the Circuit Court of Cook County. No. 16 CH 5192. Honorable Anna Helen Demacopoulos, Judge, presiding.
¶ 1 In 1966, 21-year-old Valerie Percy was murdered at her home in the Village of Kenilworth (Kenilworth). Her murder remains unsolved. As the fiftieth anniversary of her death approached, plaintiff, John Q. Kelly, filed requests under the Illinois Freedom of Information Act (FOIA) (
¶ 2 On appeal, Kelly asserts that defendants did not meet their burden of demonstrating
I. BACKGROUND
¶ 4 On September 18, 1966, an intruder entered Valerie‘s bedroom, inflicted 2 blows to her head and stabbed her 10 times. At that time, Kenilworth and the surrounding area lacked a major crimes task force. Kenilworth initially pursued the investigation with help from the surrounding communities and the ISP. Eleven days after the murder, however, the ISP was placed in charge. In the first few years of the investigation, the ISP investigated approximately 1190 leads. The investigation ebbed and flowed over the next decades and the ISP turned over the investigation to Kenilworth in 2002. In 2014, the North Regional Major Crimes Task Force/Percy Homicide Task Force was created.1 Its members include the Kenilworth Police Department, the Northbrook Police Department, the Wilmette Police Department, the Evanston Police Department and a special agent from the Federal Bureau of Investigation (FBI).
¶ 5 In January 2016, Kelly tendered FOIA requests to defendants, seeking all records pertaining to the investigation into Valerie‘s murder, including investigative reports, witness interviews, follow-up reports, photos, evidence vouchers, forensic testing results, audio and video recordings, transcripts, findings, conclusions, summaries of witness testimony, notes, memos, and correspondence.2 Kenilworth denied Kelly‘s request in its entirety, stating that “[t]he Specified Records were created in the course of administrative enforcement proceedings, or for law enforcement purposes, and disclosure would *** obstruct or interfere with an active or ongoing criminal investigation by the Village,” citing, in pertinent part, the exemption found in
¶ 6 In April 2016, Kelly filed the instant complaint against defendants, asserting they willfully and intentionally violated FOIA by failing to produce records responsive to a request. Kelly moved for partial summary judgment against Kenilworth, the ISP and the CCSAO, arguing that those public bodies had the burden of proving the requested records were exempt. Kelly also argued that the ISP and the CCSAO were not conducting any investigation or enforcement proceeding and could not rely on Kenilworth‘s investigation to claim an exemption.
¶ 7 Kenilworth then filed a cross-motion for summary judgment, asserting that records were exempt from disclosure under
¶ 8 Chief Miller stated that disclosing the information in his declaration or any portion of Kenilworth‘s investigative file would jeopardize the active, ongoing investigation. In his opinion, the entire file should remain confidential. Kenilworth received new leads every year and compared them to confidential information to verify or discount them. “It is impossible for us to predict when these leads will arise, where they will come from, what they will be about, or whether they will relate to a prior lead or part of the investigation.” Additionally, confidential information was used to discount numerous confessions. Chief Miller expected an increase in confessions upon the publicity attending the fiftieth anniversary of the murder. According to Chief Miller, Kenilworth‘s recent investigation was not “limited to the passive receipt of leads from third parties” either. He provided eight pages of additional details, which were redacted from the declaration ultimately given to Kelly. Miller later added that as recently as September 2015, he had requested assistance from the CCME to analyze evidence in this case.
¶ 9 Kenilworth argued that Chief Miller‘s declaration showed disclosure would alert targets to the existence and nature of the investigation, allow prime suspects to tamper with evidence, discourage individuals from sharing information with investigators, and make it difficult to assess leads and confessions. Kenilworth‘s codefendants should also be permitted to withhold records because they were assisting in the investigation. Moreover, the entire file should be withheld. Going through each page of the investigative file “could potentially require hundreds of hours to review, analyze and redact information.” Kenilworth did not, however, assert that the undue burden of compliance rendered the documents exempt from disclosure under
¶ 10 Kelly responded that Kenilworth could not assert an exemption over other defendants, could not assert a blanket exemption, and had not shown that the disclosure of any specific records would interfere with the allegedly ongoing investigation. Furthermore, the burden of compliance was irrelevant to a
¶ 11 At a hearing on September 7, 2016, the circuit court ordered Kenilworth to provide Kelly a redacted copy of Chief Miller‘s declaration: “I understand that this may be and result in a highly redacted affidavit. But nonetheless, the plaintiff is at least entitled to that.” The court then said it would review in camera the documents referred to in paragraphs 15, 16, and 17 of Chief Miller‘s declaration, paragraphs that would be redacted from the copy given to Kelly.4
¶ 12 Later that month, the ISP responded to Kelly‘s partial summary judgment motion, claiming exemptions under
¶ 13 According to Easum, the ISP investigated Valerie‘s murder from the 1960s through the 1990s and used FBI resources. The ISP‘s current file contained over 2000 pages, including names and information from confidential sources and files from the Kenilworth Police Department, the CPD, the FBI, and the CCME. Kenilworth had recently informed the ISP that the investigation was ongoing. Pitchford added that over the last 16 years, she had conducted a significant amount of forensic and DNA testing in Valerie‘s case. She had also received forensic testing requests from Kenilworth and members of the ISP. While Pitchford concluded her affidavit by apparently describing her involvement in the investigation over the last six months, that paragraph was redacted. The court reviewed in camera Pitchford‘s affidavit and the documents referred to in the final paragraph.
¶ 14 The CCSAO responded to Kelly‘s motion by arguing that the records were exempt under
¶ 15 The CCME then responded to Kelly‘s motion for partial summary judgment, arguing that if the court were to grant Kenilworth‘s motion for summary judgment, or deny Kelly‘s motion for partial summary judgment as to the ISP and the CCSAO, the court should also deny Kelly‘s motion for partial summary judgment as to the CCME‘s records. The court subsequently ordered the CCME to submit an index of records for in camera inspection.
¶ 16 At a hearing on December 6, 2016, the circuit court issued its opinion. The court found that (1) Kenilworth‘s investigation was active and ongoing and its files were exempt under
¶ 17 Citing federal law interpreting the federal FOIA, the court found it was appropriate to limit its in camera review to certain documents, “[c]onsidering the volume of the Percy murder investigatory file.”
“Rather than review the tens of thousands of pages of documents individually, the Court has limited its in camera review to specific documents from each Defendant to keep the review manageable. Moreover, after reviewing the documents, the Court finds it unlikely that there is any reasonably segregable non-public portion of the investigatory record that could conceivably be released.”
¶ 18 The court found Chief Miller‘s declaration provided a fact-driven, detailed account of Kenilworth‘s recent investigation. “Not only has Kenilworth met their burden of clear and convincing evidence, but this Court has no doubt this is an active, ongoing, criminal investigation.” Kelly‘s affidavits did not create a genuine issue of material fact in that regard because he was not an expert, lacked personal knowledge of the Percy investigation, and relied on publicly available facts that may be inaccurate. See
Furthermore, while
¶ 19 The court found Biesty‘s declaration, which cited the participation of the 2014 task force, provided a compelling account of the ongoing criminal investigation. The court had also reviewed the documents mentioned in paragraphs 14 through 18 of Biesty‘s affidavit. “To disclose anything further would completely abandon the public policy of the exemption.” Additionally, Pitchford‘s affidavit articulated her involvement in the investigation over the previous six months. With respect to the CCME‘s file, however, Kenilworth could not claim the exemption for documents that originated outside of the coroner‘s office, the CCME‘s predecessor, and that were not made by a public body for law enforcement purposes. The court ordered CCME to release to Kelly the transcript of the coroner‘s report and certain exhibits with redactions.6
II. ANALYSIS
¶ 21 Illinois public policy dictates 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 this Act.”
¶ 22 Consequently, FOIA‘s provisions are to be construed according to the principle that restraints on access permitted by FOIA are limited exceptions to “full disclosure of information 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.”
¶ 23 “All records in the custody or possession of a public body are presumed to be open to inspection or copying” (
¶ 24 To demonstrate that the requested records fall within an exemption, and to assist the court in making its determination, a public body must provide a detailed explanation for claiming an exemption, specifically addressing the requested documents in a manner allowing for adequate adversarial testing. Watkins v. McCarthy, 2012 IL App (1st) 100632, ¶ 13. “The trial court shall require the agency to create as full a public record as possible concerning the nature of the documents and the justification for nondisclosure without compromising the secret nature of the information.” Baudin, 192 Ill. App. 3d at 542. Furthermore, a public body can satisfy its burden only by providing objective indicia that an exemption applies under the circumstances. See Illinois Education Ass‘n, 204 Ill. 2d at 470. Affidavits are insufficient if the public body presents claims that are conclusory, overly vague or sweeping, or merely recite statutory standards. Day v. City of Chicago, 388 Ill. App. 3d 70, 74 (2009).
¶ 25 Discovery pertaining to the public body‘s search for records and its claimed exemptions is not required if the public body‘s submissions are adequate on their face. BlueStar Energy Services, Inc. v. Illinois Commerce Comm‘n, 374 Ill. App. 3d 990, 997 (2007). When this is the case, the circuit court can forgo discovery and enter summary judgment based on affidavits. Id. “FOIA cases should be handled on motions for summary judgment, once the documents at issue are properly identified.” Id. While the clear and convincing burden of proof is ordinarily subject to the manifest weight of the evidence standard of review (Burgess v. Abex Corp., 311 Ill. App. 3d 900, 903 (2000)), we review de novo an order granting summary judgment (Better Government Ass‘n v. Village of Rosemont, 2017 IL App (1st) 161957, ¶ 17).
A. The Recipient of the Request
¶ 27 Here, the public bodies relied on exemptions found in
“(1) When a request is made to inspect or copy a public record that contains information that is exempt from disclosure under this Section, but also contains information that is not exempt from disclosure, the public body may elect to redact the information that is exempt. The public body shall make the remaining information available for inspection and copying. Subject to this requirement, the following shall be exempt from inspection and copying:
* * *
(d) Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would: (i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request; [or]
* * *
(vii) obstruct an ongoing criminal investigation by the agency that is the recipient of the request.”
5 ILCS 140/7(1)(d)(i) , (vii) (West 2016).
This court has held that police agencies must prove “on a case-by-case basis specifically how a particular witness could be in danger or how an individual investigation could be compromised if a document is disclosed in which all identifying information has been redacted.” National Ass‘n of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 12 (2010).
¶ 28 Kelly argues that
¶ 29 We review construction of FOIA de novo. Stern v. Wheaton-Warrenville Community Unit School District 200, 233 Ill. 2d 396, 404 (2009). Courts liberally construe FOIA toward the full disclosure of governmental affairs and the ability of the people to monitor the government. Id. at 410-11. Conversely, courts must narrowly construe statutory exemptions from disclosure. Illinois Education Ass‘n, 204 Ill. 2d at 463. The statute‘s language is the most reliable indicator of the legislature‘s intent and courts give effect to a statute‘s plain and ordinary meaning. People v. Hanna, 207 Ill. 2d 486, 497-98 (2003). That being said, it is well settled that an interpretation may accord with a statute‘s language but not the legislature‘s intention or the spirit of the statute. Id. at 498. Where a literal reading of a statute would lead to inconvenient, unjust or absurd results, “the literal reading should yield.” Bank of New York Mellon v. Laskowski, 2018 IL 121995, ¶ 12.
¶ 30 Kelly correctly notes that “the recipient of the request” was added to the statute effective January 1, 2010, modifying “an ongoing criminal investigation” to “an ongoing criminal investigation by the agency that is the recipient of the request.” (Emphasis added.) See Pub. Act 96-542, § 10 (eff. Jan. 1, 2010) (amending
¶ 32 Kenilworth contends that Twin-Cities Broadcasting Corp. supports its position that it may assert an exemption over records held by other defendants. Kelly contends that the case stands only for the principle that an investigating agency has a substantial interest in keeping its own records secret and that the legislature‘s decision to amend the statute after the decision in Twin-Cities Broadcasting Corp. shows the legislature intended to deviate from that decision. First, even if Kelly is correct in his interpretation of Twin-Cities Broadcasting Corp., that would not preclude this court from expanding that decision. Additionally, we find it is not clear that the legislature intended to depart from Twin-Cities Broadcasting Corp. because the amendment occurred approximately 14 years after the decision and there is no indication that courts suffered from any postdecision fallout. The legislative record is silent as to why this language was added. That being said, Kelly‘s interpretation would lead to results that are absurd, inconvenient, and unjust.
¶ 33 Illinois law and practical necessity require that law enforcement agencies in this state cooperate with one another to investigate and prosecute crime. See People v. Ringland, 2017 IL 119484, ¶ 24 (stating that “[t]he State‘s Attorney‘s duty to investigate suspected illegal activity acknowledges that a prosecutor ordinarily relies on police and other agencies for investigation of criminal acts“); Ware v. Carey, 75 Ill. App. 3d 906, 915 (1979) (stating that the American Bar Association‘s standards recognize that police effectiveness in addressing crime largely depends on the effectiveness of other agencies, and that joint effort and cooperation is required for the system to work);
B. Ongoing Investigation
¶ 35 We also reject Kelly‘s assertion that defendants did not demonstrate that an investigation was ongoing, as required by
¶ 36 Having reviewed the entire record filed under seal, we find the trial court correctly determined that there is an ongoing investigation. That being said, we find that the method used by defendants, Kenilworth, the ISP and the CCSAO in particular, to address the voluminous investigative files did not comport with Illinois law. Defendants failed to demonstrate that a blanket exemption was warranted.
C. Voluminous Records
¶ 38 Kelly asserts the circuit court erred in determining that defendants were not required to prove on a document-by-document basis that the
“only to the extent that disclosure would:
(i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request [or];
* * *
(vii) obstruct an ongoing criminal investigation by the agency that is the recipient of the request.” (Emphasis added.)
5 ILCS 140/7(1)(d)(i) , (vii) (West 2016).
Additionally,
¶ 39 Defendants have essentially suggested that the disclosure of at least a significant portion of their investigative files would interfere with law enforcement proceedings or obstruct an ongoing criminal investigation. Neither Chief Miller, Biesty, nor Easum, however, claimed to have reviewed defendants’ entire investigative files. Instead, defendants and their affiants have remarked on the burden of examining and redacting every page. Understandably, defendants would prefer to claim exemptions over their entire files rather than sift through thousands of documents to redact exempt matters and disclose whatever is left. Unfortunately for defendants,
¶ 40 To be sure, the legislature has provided a statutory exemption and corresponding procedure where public bodies anticipate an undue burden. Defendants here, however, inexplicably failed to cite that exemption or comply with the corresponding statutory procedure.
¶ 41
¶ 42 Defendants here did not directly assert an exemption under
some of its records are exempt from disclosure under the Act, every document in its possession somehow comes to share in that exemption.“).
¶ 43 We recognize that the circuit court relied on federal law in determining how to approach the voluminous investigation
¶ 44 First, defendants have not brought to our attention any federal FOIA exemption for unduly burdensome requests. While that act does provide special provisions for dealing with voluminous requests, those provisions do not appear to create an exemption like that found in
¶ 45 Moreover, we recognize that the United States Supreme Court in National Labor Relations Board v. Robbins Tire & Rubber Co., 437 U.S. 214, 223-24 (1978), determined that
¶ 46 The Court in Robbins also stated that “although the segregability provision requires that nonexempt portions of documents be released, it does not speak to the prior question of what material is exempt.” Robbins, 437 U.S. at 224. As stated, however,
document“). Illinois‘s legislature has clearly chosen to handle voluminous records in a different manner than its federal counterpart.
¶ 47 Because
¶ 48 We now turn to the remedy for defendants’ failure to assert
¶ 49 Defendants below reserved the right to raise additional exemptions. In addition, the interaction between
D. Adversarial Testing
¶ 51 Finally, we briefly observe that Kelly miscomprehends the adversarial testing contemplated by FOIA. Our supreme court has recognized that public bodies are not expected to disclose the substance of exempt documents in their affidavits. See Illinois Education Ass‘n, 204 Ill. 2d at 471 (stating that an ”in camera review affords the benefits of an impartial arbiter without the risks accompanying public disclosure of the documents“). Permitting Kelly access to documents during the court‘s in camera examination would also defeat the exemptions claimed. In the context of FOIA, adversarial testing must mean something different.
¶ 52 As stated, a plaintiff is entitled to know which exemption a public body is actually raising. If a public body is not raising the undue burden exemption, a plaintiff is entitled to hold the public body to its burden of showing that it is withholding only the portions of the record that are truly exempt, either through affidavits or through materials tendered to the court for in camera review. Moreover, on the plaintiff‘s motion, before or after in camera inspection, “the court shall order the public body to provide an index of the records to which access has been denied.”
III. CONCLUSION
¶ 54 The items tendered to the court clearly demonstrated that an investigation into Valerie‘s murder is ongoing within the meaning of
¶ 55 Reversed and remanded.