Better Gov't Ass'n v. Zaruba

21 N.E.3d 516

BETTER GOVERNMENT ASSOCIATION, Plaintiff–Appellant

v.John E. ZARUBA, as Sheriff of Du Page County, Defendant–Appellee.

No. 2–14–0071.

Appellate Court of Illinois, Second District.

Nov. 6, 2014.

Paul T. Fox and Gregory E. Ostfeld, both of Greenberg Traurig, LLP, of Chicago, for appellant.

Robert B. Berlin, State's Attorney, of Wheaton (Lisa Anne Hoffman and Lisa A. Smith, Assistant State's Attorneys, of counsel), for appellee.

OPINION

Justice ZENOFF delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Better Government Association (BGA), appeals from the dismissal of its complaint seeking production of certain records from defendant, John E. Zaruba, as sheriff of Du Page County (the sheriff), pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2012)). Specifically, BGA requested records disclosing the vehicles and persons who were the subjects of Law Enforcement Agencies Data System (LEADS) inquiries conducted by Patrick Zaruba, the sheriff's teenage son. The trial court concluded that this information was exempt from disclosure under section 7(1)(a) of the FOIA (5 ILCS 140/7(1)(a) (West 2012)) and that a FOIA response to BGA's inquiries was not possible. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On June 28, 2012, BGA filed in the circuit court of Cook County its verified complaint for declaratory and injunctive relief against the sheriff. The case was subsequently transferred to the circuit court of Du Page County on the sheriff's motion.

¶ 4 BGA alleged that on May 29, 2012, it submitted FOIA requests to the sheriff, seeking the following:

“1) Copies of any and all documents relating to Patrick Zaruba's access to LEADS or other law enforcement databases.

(Examples of such documents are Patrick Zaruba's LEADS application and other supporting materials.)

2) Copies of documents sufficient to show the names of any and all persons who because of their affiliation with the Du Page County Sheriff's office have become certified to use LEADS even though they're not sheriff's office employees, from Jan. 1, 2010, to present. (Examples of such persons are interns, Explorer scouts and ride-along participants.)

2) Copies of documents sufficient to show any and all written communication between the Illinois State Police and the Du Page County Sheriff's office relating to LEADS and/or Patrick Zaruba, from May 21, 2012, to present. (Examples of such communication include emails and letters.)”

On May 31, 2012, BGA submitted another FOIA request for “[c]opies of documents sufficient to show the vehicles and persons that were the subjects of LEADS inquiries conducted by Patrick Zaruba, from November 2010 to present.”

¶ 5 On June 4, 2012, the sheriff responded as follows to BGA's requests:

“I am unable to supply any information that is responsive to your Freedom of Information request. LEADS is a system controlled by [the] Illinois State Police. You would need to contact them for information/confirmation of any certified user. You will also need to contact ISP for documentation of what persons/vehicles were the subjects of inquires [sic ] made by any certified user. As for written communication between ISP and the Du Page County Sheriff's Office related to LEADS and or Patrick Zaruba from 5/21/12 to 5/29/12, I do not have information responsive to that request.”

¶ 6 According to the complaint, in violation of section 9 of the FOIA (5 ILCS 140/9 (West 2012) ), the sheriff's response failed to state any statutory basis for denying the first, second, and fourth categories of requests; identify any FOIA exemption; include a detailed factual basis for the application of any exemption; or inform BGA of its rights to judicial review and review by the Public Access Counselor. BGA alleged that it contacted the sheriff's FOIA officer regarding these purported deficiencies in the sheriff's response, but was told that the sheriff declined to revisit his position. In count I, BGA sought a declaration of its right to the requested documents, a declaration that the sheriff's actions were willful, intentional, and done in bad faith, and an award of civil penalties. BGA sought injunctive relief in count II.

¶ 7 On October 2, 2013, the sheriff filed a motion to dismiss the complaint pursuant to section 2–619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2–619(a)(9) (West 2012)). The sheriff argued that he was “not able to legally comply” with BGA's requests, invoking section 7(1)(a) of the FOIA, which exempts public bodies from producing “[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.” 5 ILCS 140/7(1)(a) (West 2012). The sheriff represented that, in addition to his June 4, 2012, response to BGA's requests, on July 19, 2012, an assistant State's Attorney had forwarded to BGA copies of (1) an agreement dated March 3, 2008, between the Illinois Department of State Police (Department) and the Du Page County sheriff's office regarding LEADS access (the Agreement) and (2) Patrick's certificate of completion for a course entitled “LEADS Less Than Full Access.” Although neither the Agreement nor the certificate is included in the record on appeal, the sheriff represented in his motion to dismiss that section VI of the Agreement provided:

“All data supplied through LEADS is strictly forbidden to be used for personal reasons. It is strictly forbidden to sell any information obtained to any individuals, organization, government agency or corporation. It is strictly forbidden to disseminate any information obtained through LEADS to any individual organization that is not legally authorized to have access to that information.”

The sheriff insisted that he would breach the Agreement if he were to provide the requested records to BGA. Moreover, he argued that disclosure was prohibited by the Department's regulations, which are codified in the Illinois Administrative Code and provide that “LEADS data shall not be disseminated to any individual or organization that is not legally authorized to have access to the information” (20 Ill. Adm.Code 1240.80(d) (1999) ) and that a violation may result in suspension of LEADS service (20 Ill. Adm.Code 1240.110 (1999) ). The sheriff supported his motion with the affidavit of Darlene A. Jacobs, the LEADS statewide coordinator for the Department. She asserted that the information BGA requested, “should it exist,” could not be released by the sheriff in light of the Administrative Code and the Agreement.

¶ 8 In its response to the motion, BGA argued that none of the requests sought either information “obtained through LEADS” or “LEADS data” so as to implicate the Agreement or the Administrative Code. BGA noted that the regulations define “LEADS data” as “all data available through the LEADS computer” (20 Ill. Adm.Code 1240.30(b)(3) (1999) ), emphasizing that it was “seeking requests made by Patrick to the LEADS system, not personal information or data obtained from the LEADS system.” (Emphases in original.) Accordingly, BGA attempted to distinguish between the results of Patrick's searches, which it recognized would constitute “LEADS data,” and the subjects of Patrick's LEADS inquiries, which it argued would not. Additionally, BGA argued that the Agreement was not a basis for an exemption under section 7(1)(a) of the FOIA, because the Agreement was neither a law nor a rule or regulation implementing the law. Moreover, BGA argued, the Agreement and the Administrative Code did not specifically prohibit the sheriff from disclosing public records relating to unauthorized LEADS inquiries. In BGA's words, “[t]he Sheriff cannot hide behind agreements or administrative regulations designed to prevent unauthorized access to the LEADS system in order to conceal such unauthorized access.” (Emphases in original.)

¶ 9 In his reply brief in support of the motion to dismiss, the sheriff apparently abandoned his argument premised on the Agreement, but continued to insist that he properly withheld “LEADS data” as that term is used in the regulations. He submitted a second affidavit from Jacobs, in which she asserted the following:

“That on November 22, 2010, Patrick Zaruba successfully completed the course entitled ‘LEADS Less Than Full Access' through the [Department's] Learning Management System (LMS). As a result of his completion of this course, Patrick Zaruba was LEADS operator certified and authorized to access LEADS through November 22, 2012.

That in order to inquire on a person through the LEADS system, the LEADS operator will submit inquiry identifiers of last name, first name, middle initial, sex, and date of birth and/or their driver's license number into the LEADS System. Once this information is submitted into the LEADS system it is LEADS data and part of the complete LEADS record maintained by the Illinois State Police.

That through LEADS 2000, the Illinois State Police can only identify a device accessing the LEADS system by its assigned Call Directing Code (CDC) and not the unique identifiers of a certified user accessing the system.

That the Illinois Administrative Code Title 20, Part 1240.80 prohibits the dissemination of LEADS data to any individual and/or organization that is not legally authorized to have access to the information and the Better Government Association is not legally authorized to receive LEADS data.”

Accordingly, the sheriff argued, “the Illinois State Police does not distinguish between information input into the LEADS system and any other information contained in the system.” (Emphasis in original.) The sheriff insisted that he could not provide the requested information to BGA without “intentionally violating the Illinois Administrative Code and thereby subjecting [himself] to a potential suspension of all or a portion of LEADS services.”

¶ 10 The sheriff also contended that Jacobs' affidavit demonstrated that “the Illinois State Police is not able to...