KILROY WATKINS, Plаintiff-Appellant, v. GARRY F. McCARTHY, as Superintendent of the City of Chicago Police Department, Defendant-Appellee.
Docket No. 1-10-0632
Appellate Court of Illinois, First District, First Division
November 5, 2012
2012 IL App (1st) 100632
Rule 23 Order filed September 17, 2012; Rule 23 Order withdrawn November 5, 2012
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
The dismissal of an inmate‘s action pursuant to the Freedom of Information Act seeking the disclosure of documents relating to complaints of misconduct against two police officers involved in the inmate‘s prosecution was reversed and the сause was remanded to the trial court for an in camera inspection to determine whether any claimed exemptions were applicable and whether certain information should be redacted.
Decision Under Review
Appeal from the Circuit Court of Cook County, No. 09-CH-9105; the Hon. Dorothy Kirie Kinnaird, Judge, presiding.
Judgment
Reversed and remanded.
Counsel on Appeal
Loevy & Loevy, of Chicago (
Mara S. Georges, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Joseph Francis Graham, Assistant Corporation Counsel, of counsel), for appellee.
Panel
JUSTICE ROCHFORD delivered the judgment of the court, with opiniоn.
Presiding Justice Hoffman and Justice Hall concurred in the judgment and opinion.
OPINION
¶ 1 Plaintiff, Kilroy Watkins, an inmate at Lawrence Correctional Center, appeals the dismissal of his complaint against defendant, Garry McCarthy, superintendent of the Chicago Police Department (Department), seeking to compel disclosure, under the state Freedom of Information Act (FOIA) (
BACKGROUND
¶ 2 ¶ 3 In a letter dated July 26, 2008, addressed to the mayor‘s office of inquiry and information, plaintiff submitted а FOIA request for:
“[A]ll records, including personnel files between 1990 to present, relating to disciplinary actions taken against [Chicago police officers John Halloran and Kenneth Boudreau], as well as records relating to investigations of complaints made against the officers regarding their actions as police officers. Those records would include citizens’ complaints, and FBI investigations regarding the officers’ conduct.” (Emphasis added.)
The Department denied plaintiff‘s request, claiming the documents were exempt from disclosure under sections 7(1)(b), (1)(c)(ii), (c)(iii), and (c)(vi) of the FOIA.
¶ 4 After his unsuccessful administrative appeal, plaintiff filed the subject complaint against defendant, seeking a declaratory judgment that he was entitled to the requested documents under the FOIA, and an order directing defendant to produce them. Alternatively, plaintiff requested an in camera inspection of the requested documents to determine whether they may be appropriately withheld under any FOIA exemptions. Plaintiff‘s complaint referred to “records between 1990 and 1994.”
¶ 5 On October 9, 2009, defendant filed a motion to dismiss the complaint pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (Code).
¶ 6 In her seven-page affidavit, Sergeant Muzupappa explained that it is the responsibility of IAD to investigate complaints of misconduct made against officers and to create and maintain CR files containing the complaints and all records relating to the investigations of and any resulting disciplinary actions as to those complaints. During the relevant period of 1990 through 1994, the Department had an ” ‘open’ CR complaint system and thus rеgistered, processed and investigated all complaints, even if the complaint was false or frivolous or if the officer had acted lawfully.” Furthermore, under this system, a CR file would be created even if the allegation of misconduct related to an officer‘s off-duty or private conduct. Sergeant Muzupappa stated that she reviewed the CR files of Detectives Boudreau and Halloran from 1990 through 1994, and set forth in detail what those specific files contained.
¶ 7 On October 22, 2010, the circuit court entered a written order granting defendant‘s motion to dismiss with prejudice, finding the requested documents exempt from disclosure under sections 7(1)(b), (1)(c)(iii), and (1)(f) of the FOIA.
(1)(f) (West 2008). The court found section 7(1)(c)(iii) applied because both officers were involved in ongoing civil proceedings in the federal district court and, thus, disclosure of complaints of misconduct, particularly complaints found to be frivolous, “would undoubtedly lead to them being disseminated
¶ 8 On appeal, plaintiff argues the circuit court erred in finding that the requested records were exempted from disclosure and in failing to conduct an in camera review of those records under section 11(f) of the FOIA.
DISCUSSION
¶ 9 ¶ 10 Section 2-619(a)(9) of the Code allows involuntary dismissal of a claim that is “barred by other affirmative matter avoiding the legal effect of or defeating the claim.”
¶ 11 Initially, we note the parties are in agreement that although plaintiff requеsted all records, including personnel files relating to complaints of misconduct against Detectives Halloran and Boudreau, it is the CR files of these officers which are at issue. The parties, however, disagree as to whether our review encompasses the CR files from 1990 to the present, as indicated in plaintiff‘s FOIA request, or from 1990 to 1994, as indicated in plaintiff‘s administrative appeal and complaint for declaratory judgment. Because the trial court‘s decision granting defendant‘s motion to dismiss was limited to the well-pled allegations of the complaint, our review of that decision is, likewisе, limited to those same allegations
regarding the CR files from 1990 to 1994. See generally Turner v. Memorial Medical Center, 233 Ill. 2d 494, 503-04 (2009).
¶ 12 Additionally, in our discussion, unless otherwise noted, we will refer to the version of the FOIA as it existed in 2009,
¶ 13 Turning to the merits, the purpose of the FOIA is “to open governmental records to the light of public scrutiny.” Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373, 378 (1989). The FOIA may not be used to violate individual privacy rights or disrupt the proper work of a governmental body beyond its responsibilities under the Act.
¶ 14 Section 11(f) of the FOIA provides that the circuit court shall review the request for documents de novo and 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 the FOIA.
¶ 15 ¶ 16 Section 7(1)(b) Exemptions
The supreme court has adopted a per se rule for information falling within one of the specifically enumerated exemptions set forth in section 7(1)(b) of the FOIA. These exemptions cover:
“Information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless that disclosure is consented to in writing by the individual subjects of that information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” (Emphasis added.)
5 ILCS 140/7(1)(b) (West 2008).
If the public body is able to prove that a rеquested document falls within the listed
exemptions of section 7(1)(b), no further inquiry by the court is required. Stern, 233 Ill. 2d at 407.
¶ 17 Defendant maintains the evidence establishes that the requested documents are per se exempt under two provisions of
¶ 18 ¶ 19 Section 7(1)(b)(ii)
Defendant first asserts that the CR files in their entirety fall within the exemption set forth in section 7(1)(b)(ii):
“[P]ersonnel files and personal information maintained with respect to employees, appointees or elected officials of any public body or applicants for those positions[.]”
5 ILCS 140/7(1)(b)(ii) (West 2008).
Defendant does not justify his conclusion that the requested records are protected “personnel files” with factual support.
¶ 20 As wе have discussed, plaintiff‘s request is for the identified officers’ CR files. The affidavit of Sergeant Muzupappa described the CR files as records that are created and maintained, not by the personnel department of the Department, but by the IAD. The CR files contain a wide variety of documents and information pertaining to the initiation, investigation, and resolution of complaints of misconduct made by the public against police officers. Sergeant Muzzapappa does not describe the records, in any way, as “personnel files,” or as records maintained in “personnel files.” Furthermore, it is not readily apparent that CR files are the type of documents that would “reasonably be expected” to be found in personnel files. See generally Copley Press, Inc. v. Board of Education for Peoria School District No. 150, 359 Ill. App. 3d 321, 324 (2005). In that the exemptions of section 7 must be read narrowly (Day, 388 Ill. App. 3d at 73) and defendant has the burden of justifying the applicability of the asserted exemption in detail (Illinois Education Ass‘n, 204 Ill. 2d at 464), we do not find defendant‘s argument, that the personnel file exemption prohibits disclosure of the CR files in their entirety, convincing.
¶ 21 However, we understand that how a public entity‘s files are labeled or arranged dоes not necessarily control whether documents fall within the personnel file exemption of section 7. For example, in Stern, our supreme court held that a school superintendent‘s employment contract was “not the kind of record the General Assembly intended to keep from public view and does not fall within the exemption for personnel files in section 7(1)(b).” Stern, 233 Ill. 2d at 413. The court found that although an employment contract may be part of a personnel file, it bears on the public duties of the employee and, under the Act, did not constitute an invasion of personal privacy as sрecifically set forth in the Act.
¶ 22 In Gekas v. Williamson, 393 Ill. App. 3d 573 (2009), a case factually on point, the court, relying in part on the holding in Stern, held that section 7(1)(b)(ii) did not exempt from disclosure internal investigations of alleged misconduct against a deputy sheriff. Id. at 583-84. The court found that investigations of complaints of misconduct differed from performance evaluations and dealt with the sheriff‘s public duties. We find Gekas to be controlling and that it requires a conclusion that the CR files are not exempt from disclosure under section (7)(b)(ii) as personnel files.
¶ 23 Defendant asks us not to follow Gekas because that court made “a profound error of statutory construction” when it said:
“Unlike a performance evaluation, the Division‘s records are not generated for [the deputy sheriff‘s] personal use, and they do not concern his personal affairs. What he does in his capacity as deputy sheriff is not his private business.
Whether he used excessive force or otherwise committed misconduct during an investigation or arrest is not his private business. Internal-affairs files that scrutinize what a police officer did by the authority of his or her badge do not have the personal connotations of an employment application, a tax form, or a request for medical leavе. Not every scrap of paper that enters a personnel file necessarily is personal information.” Gekas, 393 Ill. App. 3d at 583.
Defendant believes that the court in Gekas disregarded that section 7(1)(b)(ii) exempts both “personnel files” and “personal information.”
¶ 24 As plaintiff notes in his reply brief, the point of the above discussion in Gekas was the court‘s recognition that a complaint of misconduct against a deputy sheriff in the performance of his public duties should not, as set forth in the introduction of section 7(1)(b), “be considered an invasion of personal privacy,” even if contained within otherwise exempt personnel files. (Internal quotation marks omitted.) Gekas, 393 Ill. App. 3d at 584. See also Stern, 233 Ill. 2d at 412 (where “the mere ‘commingling’ of exempt and nonexempt material does not prevent a public body from disclosing the nonexempt portion of the record“); Rockford Police Benevolent & Protective Ass‘n v. Morrissey, 398 Ill. App. 3d 145, 152 (2010) (court rejected argument that the personnel file exemption applied to a department as a whole, saying the exemption prevents “an invasion of an individual‘s personal privacy“).
¶ 25 Defendant raises issues as to certain CR files, and their need to be protected from disclosure, under the personnel file exemption. First, according to the affidavit of Sergeant Muzupappa, the requested CR files include complaints that were found to be without basis or frivolous. However, in Gekas, the court held that “[c]omplaints, founded or unfounded, that [an officer] committed misconduct in his [or her] capacity *** are information that bears on [his or her] public duties,” and are not exempt. (Internal quotation marks omitted.) Gekas, 393 Ill. App. 3d at 586. Similarly, the CR files requested by plaintiff pertaining to complaints against the officers here, which were found to be without merit, would not be exempt under section 7(b)(ii).
¶ 26 Second, the affidavit also stated that one CR file “does not involve any allegation of wrong doing by an officer in the course of his officiаl duties [but] involves an allegation against the officer in his off-duty capacity.” At this stage, and without further knowledge of these particular documents that a more detailed affidavit and an in camera inspection would reveal, we decline to extend the Gekas holding and require disclosure of a complaint that deals with allegations of off-duty misconduct. However, the circuit court, on remand, should review the file and consider if any of the records within that particular CR file “bear” on the officer‘s public duties, are entirely personal in nature, or exempt for any reason.
¶ 27 Third, as for the CR file, which Sergeant Muzzapappa avers “involves the arrest and
investigation оf persons under the age of 17, and is replete with documents addressing that subject matter,” we note plaintiff‘s concession in his reply brief that any and all identifying and personal information as to the complainants and witnesses may be redacted prior to disclosure. See
¶ 28 Although we have found that the requested CR files in their entirety are not per se exempt from disclosure as personnel files, the CR files may contain purely personal informаtion as to the officers that is exempt from disclosure. A review of Sergeant Muzzapappa‘s affidavit shows that CR files may include the officers’ social security numbers, birth dates, employee numbers, personal health information, home addresses, and home telephone numbers. This personal information should be redacted before any disclosure of the CR files.
¶ 29 ¶ 30 Section 7(1)(b)(v)
Subsection (v) of section 7(1)(b) exempts from disclosure “information revealing the identity of persons who file complaints with or provide information to administrative, investigative, law enforcement or penal agencies.”
¶ 31 The Muzuрappa affidavit delineates the extent of personal information contained in the CR files as to complainants, witnesses, and victims. In his reply brief, as we discussed above, defendant states he “is willing to agree that identifying information of complainants and witnesses in the CR files, such as names, addresses, dates of birth, social security numbers, telephone numbers, sex, and race, may be redacted from the CR files prior to disclosure.” Accordingly, this personal information, as to complainants, witnesses, and others who provided information as to the complaints, is exempt and should be redaсted from any disclosed records.
¶ 32 ¶ 33 Other Exemptions
Defendant also asserts that the requested records are exempt under sections 7(1)(f) and 7(1)(a). Where the public body asserts an exemption for information outside the ambit of section 7(1)(b), the information is not per se exempt, and the circuit court must determine, on a case-by-case basis, whether the disclosure of such information would constitute an unwarranted invasion of personal privacy. Stern, 233 Ill. 2d at 407.
¶ 34 ¶ 35 Section 7(1)(f)
Defendant maintains that the CR files are protected from disclosure under section 7(1)(f) of the FOIA, which exempts “[p]reliminary drafts, notes, recommendations, memoranda аnd other records in which opinions are expressed, or policies or actions are formulated.”
¶ 36 Section 7(1)(f) has been held to be “the equivalent of the federal ‘deliberative process’ exemption [of the federal Freedom of Information Act], which applies to ‘predecisional materials used by a public body in its deliberative process.’ ” Day, 388 Ill. App. 3d at 79 (quoting Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (2003)). This exemption expresses the public pоlicy favoring the confidentiality of predecisional materials and “is intended to protect the communication process and encourage frank and open discussion among agency employees before a final decision is made.” Harwood, 344 Ill. App. 3d at 248. The court, in Enviro Tech International, Inc. v. United States Environmental Protection Agency, 371 F.3d 370 (7th Cir. 2004), explained the scope of the federal deliberative-process exemption:
“Consistent with its purpose, the deliberative process privilege typically does not justify the withholding of purely factual material [citation], nor of documents refleсting an agency‘s final policy decisions, [citation], but it does apply to predecisional policy discussions, [citation], and to factual matters inextricably intertwined with such discussions, [citation]. Thus, in order to qualify for the privilege, a document must be both predecisional in the sense that it is ‘actually [a]ntecedent to the adoption of an agency policy,’ and deliberative in the sense that it is ‘actually... related to the process by which policies are formulated.’ [Citations.]” Id. at 374-75.
See Harwood, 344 Ill. App. 3d at 248 (explaining that the exemption ” ‘protects predecisional, deliberative communications that are part of an agency‘s decision-making process’ [citation]“).
¶ 37 In her affidavit, Sergeant Muzupappa stated the requested CR files included summary report digests, which state the investigators’ findings as well as their recommendations regarding appropriate discipline, and the command channel review summaries, which state the opinions of senior Department officials on the findings and recommendations for discipline. Additionally, some CR files had additional memoranda from senior officials discussing their opinions and reasoning in reviewing the investigators’ findings. The sergeant stated: “These opiniоns and recommendations issued during Command Channel Review, along with the Summary Report Digest, form the basis of any subsequent decision as to whether, and what kind of discipline, if any, should be imposed against the officer.” The affidavit does make a case that the deliberative-process exemption may apply and generally indicates what materials in each CR file may fall within the deliberative-process exemption. The affidavit, however, does not allow for adequate adversary testing of defendant‘s premise that the exemption applies to the requested documents as a whоle, and certainly does not justify the withholding of the entire CR file. An in camera inspection is necessary to determine whether the exemption applies and, if so, to what material.
¶ 38 We conclude an ”in camera review [would be] the most effective way for the public body to objectively demonstrate that the exemption claimed does, in fact, apply.” National Ass‘n of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 13 (2010). To the extent that any of the documents contained in the CR files include protected predecisional matters, those portions may be redacted, and the documents need not be withheld in their еntirety. Day, 388 Ill. App. 3d at 79;
body shall delete the information which is exempt and make the remaining information available for inspection and copying“).
¶ 39 ¶ 40 Section 7(1)(a)
Defendant argues that the CR files fall within the exemption of section 7(1)(a) of the FOIA, which covers “[i]nformation specifically prohibited from disclosure by federal or State law.”
¶ 41 Defendant first claims that disclosure is prohibited under state law in that the CR files are “records of disciplinary action” under the Personnel Record
¶ 42 The Personnel Record Review Act is designed to permit employees “to review personnel records; to provide criteria for the review; to prescribe the information which may be contained in personnel records; and to provide penalties.” (Emphasis added.)
¶ 43 Defendant further argues that the CR files are prohibited from disclosure under “federal law” because of the protective order entered in the Hill suit. The order, by its terms, applied to the exchange of confidential discovery by the parties in the Hill suit. The protective order did not specifically prohibit the dissemination of documents pursuant to a FOIA request of a person not a party to the Hill suit. Further, the order had a means by which the Department could seek release of the CR files. The order allowed the parties to make an application to release documents that may have been considered confidential under the protective order. Plaintiff in his reply brief advised this court that after the dismissal of plaintiff‘s suit, on October 14, 2011, the Hill suit was dismissed with prejudice, without leave to reinstate, and attached a copy of the final agreed order of dismissal based on the parties’ agreement to settle the matter. Even if we were to accept that the protective order is “a federal law” prohibiting disclosure under section 7(1)(a), the protective order would no longer be applicable based on the dismissal with prejudice of the Hill suit.
CONCLUSION
¶ 44 ¶ 45 In summary, we have found that the requested CR files in their entirety, including complaints found to be without merit, are not exempt under section 7(1)(b)(ii) as personnel files. We do find the purely personal information of the police officers contained in the CR files discussed above should be redacted before any release tо plaintiff. The CR file relating to a complaint as to off-duty misconduct should be reviewed by the court upon remand and a determination should be made as to whether any material in that CR file is protected. Personal information relating to the complainants and witnesses is exempt under section 7(1)(b)(v) and should be redacted from the CR files. The deliberative-process exemption of section 7(1)(f) may apply to certain portions of the CR files. The issue needs further development by the parties as to the applicability of the exemption and requires an in camera
¶ 46 Notwithstanding plaintiff‘s suggestion that an in camera inspection is unnecessary and that the CR files should be disclosed after redactions as to identifying and personal information, we observe that an in camera review is the most effective way for a public body to objectively demonstrate that a claimed exemption applies, even after the redactions are made. National Ass‘n of Criminal Defense Lawyers, 399 Ill. App. 3d at 12-13. An in camera inspection under section 11(f) requires a de novo review by the circuit court and a determination of whether the requested CR files may be withheld under any provision of the FOIA.
¶ 47 Accordingly, we reverse the trial court‘s order granting the motion to dismiss and remand this cause to the trial court for an in camera inspection of the requested CR files for the time period of 1990 through 1994.
¶ 48 Reversed and remanded.