Green v. Chi. Police Dep't

2021 IL App (1st) 200574

183 N.E.3d 1012

451 Ill.Dec. 555

Charles GREEN, Plaintiff-Appellee,

v.The CHICAGO POLICE DEPARTMENT, Defendant-Appellant.

No. 1-20-0574

Appellate Court of Illinois, First District, FIFTH DIVISION.

Filed March 31, 2021

Mark A. Flessner, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Elizabeth Mary Tisher, Assistant Corporation Counsel, of counsel), for appellant.

Jaime Orloff Feeney, of Ropes & Gray LLP, and Jared Kosoglad, of Jared S. Kosoglad, P.C., both of Chicago, for appellee.

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

¶ 1 This case arises out of plaintiff-appellee Charles Green's 2015 request, pursuant to the Freedom of Information Act (FOIA) ( 5 ILCS 140/1 et seq. (West 2014)), to the Chicago Police Department (CPD) for all closed complaint register files (CR files) concerning all Chicago police officers. When the CPD failed to respond to his request, Mr. Green filed suit in the circuit court of Cook County, seeking, inter alia , an order directing the CPD to produce the requested files. While Mr. Green's lawsuit was pending in the circuit court of Cook County, an injunction was also in place in that court, prohibiting the CPD from releasing any CR files over four years old from the date of any FOIA request. The trial court continued Mr. Green's lawsuit while the injunction that prohibited the release of any files over four years old was being litigated. This court ultimately vacated the injunction in 2016.

¶ 2 In 2018, following the vacatur of the injunction, Mr. Green and CPD filed cross motions for summary judgment in the circuit court of Cook County related to Mr. Green's pending complaint seeking to obtain the CR files after the CPD ignored his initial FOIA request. On January 10, 2020, the trial court granted Mr. Green's motion for summary judgment, denied the CPD's motion, and ordered the CPD to turn over all CR files dated 1967-2011. (The court had previously ordered the CPD to turn over the CR files dated 2011-15.)

¶ 3 On appeal, the CPD argues that (1) the trial court lacked jurisdiction to order it to produce files that were subject to an injunction at the time that they were requested and (2) the court erred in rejecting its belated claim that producing 48 years of closed CR files would be unduly burdensome. For the following reasons, we reverse the judgment of the circuit court of Cook County.

¶ 4 BACKGROUND

¶ 5 In 1986, Mr. Green was convicted of four counts of murder, aggravated arson, residential burglary, home invasion, armed robbery, and armed violence, arising out of a quadruple homicide. Mr. Green, who was 16 years old at the time of the crimes, was sentenced to life imprisonment. Following Mr. Green's conviction, the lead detective who had investigated the homicide was found to have coerced inculpatory statements from arrestees and abused those in custody on several occasions. There was no specific finding related to this detective regarding Mr. Green. Mr. Green was released from custody in 2009 after numerous appeals, but his conviction stands.

¶ 6 On November 18, 2015, Mr. Green, through counsel, sent a FOIA request to the CPD, seeking "any and all closed complaint register files that relate to Chicago Police Officers." When the CPD did not respond to this request, Mr. Green filed suit in the circuit court of Cook County on December 4, 2015. In his complaint, Mr. Green alleged that the CPD violated FOIA by failing to produce the requested documents or otherwise respond to his request. He sought, inter alia , an order requiring the CPD to produce the requested records with any exempted material redacted.

¶ 7 The CPD answered Mr. Green's complaint and admitted that it had not responded to Mr. Green's initial FOIA request. The CPD also asserted two affirmative defenses, arguing (1) that several documents or portions of documents encompassed in Mr. Green's request were exempt from production because they contained private or personal information and (2) that it was barred from producing CR files over four years old pursuant to an injunctive order in an unrelated case that was in place at the time of Mr. Green's FOIA request.

¶ 8 The injunctive order to which the CPD referred in its answer to Mr. Green's lawsuit, arose out of litigation between the Fraternal Order of Police (FOP), the City of Chicago (City), and the CPD. That litigation was prompted by an August 2014 FOIA request to the CPD by the Chicago Tribune (Tribune) and the Chicago Sun-Times (Sun-Times). The Tribune and the Sun-Times requested a list of names of police officers who had received at least one complaint dating back to 1967, along with the CR number of the complaint. The City informed the FOP that it intended to release the requested information. In response, the FOP sought to enjoin the City from producing CR files dating back to 1967 pursuant to any FOIA requests. The FOP cited a provision in the collective bargaining agreement between the City and the FOP, requiring the City to destroy CPD files over four years old.

¶ 9 A preliminary injunction was entered in December 2014 that prohibited the release of a list of police officers against whom there were complaints that were over four years old as of the date of the Tribune and Sun-Times's FOIA request. A second preliminary injunction was entered in May 2015. That injunction more broadly prohibited the City and the CPD from releasing any CR files more than four years old as of the date of any FOIA request. The issue of whether the City had violated the collective bargaining agreement by not destroying CPD CR files that were more than four years old was brought to arbitration while the injunction was still in effect. And one year later, an arbitrator ruled that the City had violated the collective bargaining agreement by preserving outdated CR files and disciplinary records. The arbitrator ordered the City to purge its records of all police misconduct investigations and discipline that were more than five years old.

¶ 10 The City appealed both the December 2014 and the May 2015 preliminary injunctions. This court vacated both injunctions as against public policy. Fraternal Order of Police, Chicago Lodge No. 7 v. City of Chicago , 2016 IL App (1st) 143884, ¶¶ 35-40, 405 Ill.Dec. 803, 59 N.E.3d 96. Subsequently, this court also vacated the arbitration award that had ordered the files destroyed, finding it to be against public policy. City of Chicago v. Fraternal Order of Police , 2019 IL App (1st) 172907, ¶¶ 37-40, 430 Ill.Dec. 574, 126 N.E.3d 662. That decision was later affirmed by our supreme court. City of Chicago v. Fraternal Order of Police, 2020 IL 124831, ¶¶ 43-44, 450 Ill.Dec. 18, 181 N.E.3d 18.

¶ 11 For case management purposes and due to the pending FOP litigation, the trial court had consolidated Mr. Green's instant lawsuit with the FOP case that sought to enjoin the release of files older than four years. That consolidation lasted until January 10, 2018, at which time the court set a schedule for dispositive motions in the instant case. In March 2018, the CPD moved for partial summary judgment, arguing that Mr. Green was only entitled to the CR files that were not subject to the injunction. Specifically, it argued that it should only have to produce CR files dated after 2011, or four years prior to Mr. Green's 2015 request. In its motion, the CPD also acknowledged that when it failed to respond to the request within five business days pursuant to FOIA, it "waived its right to deny Plaintiff's request on the grounds that it was unduly burdensome."

¶ 12 On July 25, 2018, the trial court denied the CPD's motion for summary judgment, despite finding that the CPD did not wrongfully fail to produce the CR files dated 1967-2011 at the time they were requested. The trial court further ordered the parties to confer with each other to determine a schedule for production of the CR files dated from 2011-15, as those files were not subject to the injunction. Then, in September 2018, the trial court ordered the CPD to produce the CR files dated 2011-15 by December 31, 2018.

¶ 13 Between July 2018 and February 2019, the parties filed cross-motions for summary judgment. During this time, the CPD did not turn over any CR files dated 2011-15. At an April 5, 2019, hearing on the parties’ pending motions, including a motion by Mr. Green to compel the CPD to produce the files dated 2011-15, the CPD stated that it was working on creating an online data portal for the files dated 2011-15 but was still in the process of reviewing and redacting relevant files.

¶ 14 With regard to the issue of production of the 1967-2011 files, the trial court agreed that the CPD could not be sanctioned for withholding the files dated 1967-2011, since, at the time they were requested, the CPD was prohibited from releasing them by the injunctions that were then in place. Nevertheless, the trial court held that once the injunctions were lifted, there was no reason why Mr. Green should be required to submit a new FOIA request to access the files. Instead, the court again ordered the parties to work together to determine a schedule for producing the CR files dated 1967-2011. The trial court did not rule on the parties’ cross motions for summary judgment at that time, stating it needed more details on the "practicalities," but indicated it would probably grant both parties’ motions in part.

¶ 15 Over the next eight months, the parties filed several motions. The CPD filed a motion to reconsider the trial court's ruling of April 5, which ordered the parties to work together to determine a schedule for production of the files dated 1967-2011. Mr. Green moved twice to compel compliance with the court's April 5, 2019, order, invoking the court's contempt power, in light of the CPD's failure to comply with the trial court's previous December 31, 2018, deadline for production of the CR files dated 2011-15.

¶ 16 The trial judge who had issued...