Chi. Pub. Media v. Cook Cnty. Office of the President

2021 IL App (1st) 200888

197 N.E.3d 249

458 Ill.Dec. 836

CHICAGO PUBLIC MEDIA, Plaintiff-Appellant,

v.The COOK COUNTY OFFICE OF THE PRESIDENT, Defendant-Appellee.

No. 1-20-0888

Appellate Court of Illinois, First District, Fifth Division.

Filed June 25, 2021

Joshua Burday, Matthew Topic, Merrick Wayne, and Shelley Geiszler, of Loevy & Loevy, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Cathy McNeil Stein, Silvia Mercado Masters, and Martha-Victoria Jimenez, Assistant State's Attorneys, of counsel), for appellee.

JUSTICE ROCHFORD delivered the judgment of the court, with opinion.

¶ 1 Plaintiff-appellant, Chicago Public Media, requested the production of records under the Freedom of Information Act (FOIA or Act) ( 5 ILCS 140/1 et seq. (West 2018)), relating to a political action committee that was chaired by a commissioner of the Cook County Board of Commissioners (CCB). In response, defendant-appellee, Cook County Office of the President (OCCP), produced numerous documents with redactions, which OCCP asserted were exempt under FOIA. Plaintiff filed an action alleging a willful violation of FOIA and requested declaratory and injunctive relief against OCCP. The parties filed cross-motions for partial summary judgment. After an in camera inspection of the records at issue, the circuit court denied plaintiff's motion for partial summary judgment, except for one specific record, and granted partial summary judgment in OCCP's favor, except for the same record. After a motion for rehearing, the circuit court found that certain redacted material on another record was not exempt and should be produced. Plaintiff has appealed and argues that the court erred in finding that the remaining withheld material was exempt under sections 7(1)(f) and 7(1)(m) of FOIA (id. § 7(1)(f), (m)). We agree with plaintiff that the asserted exemptions did not apply.

¶ 2 On July 20, 2018, Dan Mihalopoulos, on behalf of plaintiff, submitted an initial request under FOIA by letter to Laura Lechowicz Felicione, Special Counsel and FOIA Officer of OCCP. Plaintiff sought

"[a]ny and all correspondences, written or electronic, that contain the key words ‘Cause the Effect’ or ‘Off the Sidelines’ and were sent by Cook County Commissioner Bridget Gainer or any of the following employees of the Cook County Board of Commissioners: Margaret Cox, [Catherine] Sabo, Abin Kuriakose, Michaela Vargas, [or] Marty Malone."

¶ 3 Cause the Effect Chicago (formerly known as Off the Sidelines Chicago) is a registered political action committee founded and chaired by Bridget Gainer, a commissioner of the CCB. Catherine Sabo, a former employee of the CCB, acted as treasurer. The organization seeks to encourage and empower women to attain public offices and "to effect change" on issues that matter to women.

¶ 4 In a July 27, 2018, letter to Mihalopoulos, pursuant to section 3(e)(vii) of the Act (id. § 3(e)(vii)), Felicione extended the time for OCCP to respond to the request by five days as there was a "need for consultation *** among two or more components of a public body having a substantial interest in the determination or in the subject matter of the request." In a July 31, 2018, letter, Felicione informed Mihalopoulos that the request was unduly burdensome and asked him to narrow the request. Subsequent to these letters, Felicione and Mihalopoulos conferred by telephone. Felicione informed Mihalopoulos that the requested documents were on "two separate tracks," with the vast majority of the records on the personal e-mail server of Commissioner Gainer and others on the Cook County e-mail system. The Cook County Bureau of Technology can only generate records that are on the county system. After their discussions, plaintiff agreed to narrow its request to the period of time after January 1, 2015. OCCP agreed that it would produce responsive e-mails that were on the Cook County e-mail server by August 10, 2018, and Commissioner Gainer would produce a log of her private e-mails.

¶ 5 In the meantime, on August 1, 2018, plaintiff submitted a second request to OCCP for: "[a]ny and all correspondences written or electronic, between the Office of the President or its employees and Cook County Commissioner Bridget Gainer or her staff since July 19, 2018, regarding [Mihalopoulos's] Freedom of Information Act request to the Office of the President filed on July 20, 2018."

¶ 6 On August 10, 2018, in response to the first request, OCCP produced all of the responsive e-mails (88 pages of e-mail records), which had been located on the Cook County e-mail system. OCCP redacted personal information (private e-mail addresses and cell phone numbers) pursuant to sections 7(1)(b) and 7(1)(c) (id. § 7(1)(b), (c)) and other material (alleged to be deliberative) under section 7(1)(f) (id. § 7(1)(f)).

¶ 7 OCCP had responded previously to the second request, on August 9, 2018, and produced nine e-mail records, which had been located on the Cook County system. OCCP redacted private e-mail addresses pursuant to sections 7(1)(b) and 7(1)(c) and attorney communications pursuant to section 7(1)(m) (id. § 7(1)(m)).

¶ 8 On November 7, 2018, plaintiff filed suit alleging that OCCP, in responding to each of its requests, willfully violated FOIA. Plaintiff sought an order directing OCCP to produce material that had been withheld or redacted and an award of attorney fees and penalties. In its answer, OCCP denied that it had violated the Act and raised affirmative defenses that the redacted material at issue was exempt from disclosure and that certain of the requested records were not in its possession or control.

¶ 9 Subsequent to the filing of the complaint, Commissioner Gainer, on November 13, 2018, provided OCCP with more than 3000 pages of responsive e-mail records that had been located on her personal server. In lieu of the promised log from the commissioner, OCCP submitted these documents to plaintiff the next day with redactions for private e-mail addresses and cell phone numbers and names of minors pursuant to sections 7(1)(b) and 7(1)(c). It appears that at this point, OCCP had produced all of the responsive e-mails from both servers and only redactions were still at issue.

¶ 10 The parties moved for partial summary judgment. In its motion, plaintiff asserted that OCCP had not met its burden of proving by clear and convincing evidence that the redacted information was exempt under sections 7(1)(f) and 7(1)(m) of FOIA. Plaintiff did not challenge the redactions of personal information under sections 7(1)(b) and 7(1)(c).

¶ 11 In its cross-motion and response, OCCP argued that there was no evidence of willful conduct on its part in responding to the requests and that the withheld information was exempt under FOIA. In support of its cross-motion, OCCP submitted the affidavit of Felicione in which she set forth the steps taken by OCCP to comply with plaintiff's requests.

¶ 12 OCCP contended that many of the e-mails, which were produced in response to the first request, contained back-and-forth discussions between Commissioner Gainer and others as to how to best disseminate information to the public. OCCP maintained that the redactions were exempt under section 7(1)(f) because they contained preliminary drafts of talking points, media strategy discussions, and proposed media content.

¶ 13 OCCP further argued that the material redacted in response to the second request contained communications among Felicione; Brandon Brooks, special assistant for legal affairs of the Cook County Bureau of Technology; Commissioner Gainer; and her attorney, Burt Odelson. OCCP claimed the redactions were protected under section 7(1)(m).

¶ 14 Plaintiff, in reply to its motion and in response to the cross-motion, maintained that section 7(1)(f) does not apply to discussions with individuals who were not employed by the county (Sabo and Rikeesha Phelon) that do not involve the development of government policy or that pertain to media strategy or talking points. Plaintiff explained that Phelon operates Phelon Public Strategies, a consulting firm that had received payments from Citizens for Bridget Gainer. Additionally, plaintiff asserted that OCCP had not met its burden of establishing that the exemption of section 7(1)(m) applied, in that Felicione's affidavit did not offer justification for asserting this exemption. Plaintiff asked the circuit court to review the unredacted records in camera to determine whether section 7(1)(m) applied to e-mails involving Odelson.

¶ 15 In its reply, OCCP cited federal law and decisions of the Illinois Public Access Counselor in support of its position that section 7(1)(f) applied to discussions and drafts of possible media strategies, talking points, and responses to media requests for information. OCCP also maintained that it had properly asserted the exemption of section 7(1)(m) to the content of e-mails with Felicione, Commissioner Gainer, Brooks, and Odelson, which contained legal advice to OCCP and Commissioner Gainer regarding plaintiff's FOIA requests. OCCP "welcome[d] an in camera inspection of the unredacted emails to demonstrate that its exemption claim is proper."

¶ 16 After conducting a hearing on the cross-motions for partial summary judgment, on September 19, 2019, the circuit court entered an order taking the cross-motions under advisement and directing OCCP, "for the reasons stated on the record," to produce the challenged records for an in camera examination. The record on appeal does not contain a transcript of the September 19, 2019, hearing.

¶ 17 At a hearing on October 28, 2019, the circuit court explained that it had done an in camera examination of the challenged records from the Cook County e-mail system. The court noted that based on the arguments at the September 19 hearing, the e-mails from Commissioner Gainer's personal e-mail account were not "before this Court for determination." The court found that, as to the material which was redacted under ...