Green v. Chi. Police Dep't

2022 IL 127229

215 N.E.3d 105

465 Ill.Dec. 309

Charles GREEN, Appellant,

v.The CHICAGO POLICE DEPARTMENT, Appellee.

Docket No. 127229

Supreme Court of Illinois.

Filed September 22, 2022

Nicholas M. Berg, Timothy R. Farrell, Jaime Orloff Feeney, and Charles D. Zagnoli, of Ropes & Gray LLP, and Jared Kosoglad, of Jared S. Kosoglad, P.C., both of Chicago for appellant.

Celia Meza, Corporation Counsel, of Chicago (Myriam Zreczny Kasper, Suzanne M. Loose, and Stephen G. Collins, Assistant Corporation Counsel, of counsel), for appellee.

JUSTICE MICHAEL J. BURKE delivered the judgment of the court, with opinion.

¶ 1 A public body has 5 to 10 business days to respond to a request for information under the Freedom of Information Act (FOIA) ( 5 ILCS 140/3(d), (e) (West 2018)). The requester then has five years to initiate an enforcement action to compel disclosure of information withheld by the agency. Id. § 11(a); 735 ILCS 5/13-205 (West 2018). Often, the operative law and facts do not change between the public body's denial of access and the circuit court's review of the denial. But sometimes, like in this case, circumstances change, casting the denial in a new light. The issue presented is whether FOIA authorizes the circuit court to account for changed circumstances when determining whether the withholding of public information is proper.

¶ 2 An injunction that was entered in another action prohibited the public body from releasing certain records requested in this case. The injunction was vacated while this action was pending, but the public body persisted in its denial on the ground that the information was withheld properly at the time of the request. The parties dispute whether the Cook County circuit court should have accounted for the invalidation of the injunction when reviewing the denial.

¶ 3 We hold that, unless the FOIA exemption states otherwise, the circuit court should review the withholding of information under the circumstances as they existed when the public body made its decision. 5 ILCS 140/3, 11 (West 2018). This "time-of-request" approach to reviewing FOIA denials is practical and fosters finality. If the information becomes releasable later, a requester may refile his request and avail himself of FOIA's guarantees of prompt government compliance with valid requests. Id. § 3(d) (FOIA requires the public body to respond within five business days unless the time for response is properly extended).

¶ 4 Conversely, the "time-of-review" approach would compel a public body to monitor and revise its FOIA responses for up to five years or risk liability for the requester's attorney fees in an enforcement action. Judicially mandating an endless cycle of reprocessing of every denial and redaction would undermine FOIA's goal of providing public records as "expediently and efficiently as possible." Id. § 1.

¶ 5 I. BACKGROUND

¶ 6 The Chicago Police Department (CPD) received two FOIA requests—one from local newspapers and one from plaintiff, Charles Green—for all information relating to citizen complaints filed against Chicago police officers since January 1, 1967. The records have been divided conceptually into two groups based on their age, because the injunction barred the release of records that were more than four years old at the time they were requested. The injunction initially applied to the newspapers’ FOIA request and was later applied to plaintiff's FOIA request, which is at issue in this appeal.

¶ 7 CPD eventually created an online portal through which the public could access the records that were not covered by the injunction. The released records are almost 300,000 pages and cost $750,000 to review, redact, and produce. CPD asserts that producing the records covered by the injunctions would take an additional 10 years and cost $8 million to process.

¶ 8 A. The Newspapers’ FOIA Request and the Fraternal Order of Police Litigation

¶ 9 In August 2014, the Chicago Tribune and the Chicago Sun-Times (collectively, the newspapers) requested a list of the names of police officers who had received at least one citizen complaint, as well as the officer's date of appointment, the complaint category, the complaint registry (CR) number, the incident date, the date the complaint was closed, the final finding of the investigation, and any disciplinary action taken. Fraternal Order of Police, Chicago Lodge No. 7 v. City of Chicago , 2016 IL App (1st) 143884, ¶ 4, 405 Ill.Dec. 803, 59 N.E.3d 96.

¶ 10 In October 2014, the City of Chicago (City) and CPD informed the Fraternal Order of Police (FOP) that they intended to release the requested information. The FOP, in turn, filed a complaint to enjoin the release of files that were more than four years old. The FOP cited a provision in its collective bargaining agreement (CBA) that required the destruction of records of alleged police misconduct once the records reached that age. Id. ¶ 5.

¶ 11 In December 2014, the circuit court granted the FOP a preliminary injunction prohibiting the release of CR files that were more than four years old as of the date of the newspapers’ FOIA request. Id. ¶ 10. In May 2015, the court entered another preliminary injunction that broadly prohibited the release of any CR files that were more than four years old on the date of a subsequent FOIA request. Id. ¶ 13. On November 4, 2015, an arbitrator ruled that the City had violated the CBA and ordered the City to purge the CR files covered by the injunctions. Id. ¶ 14.

¶ 12 B. Plaintiff's FOIA Request and Enforcement Action

¶ 13 Meanwhile, plaintiff became aware that some of the CR files he wanted might be destroyed. Plaintiff is a former inmate convicted in 1986 of offenses arising from a quadruple homicide. He claims he was wrongly convicted and wishes to prove his innocence by exposing police misconduct.

¶ 14 On November 18, 2015, two weeks after the arbitrator ordered the documents destroyed, plaintiff's counsel sent CPD an e-mail with the subject line "Charles Green FOIA Request." Plaintiff requested "any and all closed complaint register files that relate to Chicago Police Officers."

¶ 15 CPD did not respond to plaintiff's request, which constitutes a denial under FOIA. 5 ILCS 140/3(d) (West 2018) ("Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request."). CPD's failure to respond barred CPD from treating the request as unduly burdensome. Id. Ordinarily, a public body may deny a request as unduly burdensome by demonstrating "there is no way to narrow the request and the burden on the public body outweighs the public interest in the information." Id. § 3(g).

¶ 16 On December 4, 2015, plaintiff filed this enforcement action, which was assigned to the trial judge who was presiding over the FOP litigation. Plaintiff alleged CPD had violated FOIA by failing to produce the requested documents or otherwise answer his request. He sought, inter alia , an order compelling CPD to produce the requested records with any exempted material redacted.

¶ 17 CPD asserted two affirmative defenses, arguing (1) certain documents or parts of documents were exempt from production because they contained private or personal information and (2) the May 2015 injunction in the FOP litigation barred CPD from producing CR files that were more than four years old at the time of plaintiff's request. For almost two years, the circuit court entered a series of continuances while the FOP litigation progressed.

¶ 18 C. The Injunctions Are Vacated

¶ 19 On July 8, 2016, the appellate court vacated the two preliminary injunctions as against public policy. Fraternal Order of Police, Chicago Lodge No. 7 , 2016 IL App (1st) 143884, ¶¶ 35-40, 405 Ill.Dec. 803, 59 N.E.3d 96. The appellate court also vacated the arbitration award that had ordered the files destroyed, and this court affirmed the decision. City of Chicago v. Fraternal Order of Police , 2019 IL App (1st) 172907, ¶¶ 37-40, 430 Ill.Dec. 574, 126 N.E.3d 662, aff'd , 2020 IL 124831, ¶¶ 43-44, 450 Ill.Dec. 18, 181 N.E.3d 18.

¶ 20 D. Cross-Motions for Summary Judgment

¶ 21 On March 9, 2018, CPD moved for partial summary judgment, arguing that plaintiff was not entitled to the CR files dated 1967 through 2011 because they were subject to the injunction at the time of plaintiff's request. On July 25, 2018, the circuit court denied CPD's motion, despite determining that the documents had not been withheld improperly when they were requested. Then, on September 19, 2018, the court ordered CPD to produce the CR files dated 2011 to 2015 by December 31, 2018.

¶ 22 In November and December 2018, the parties filed cross-motions for summary judgment on the issue of whether CPD could rely on the recently vacated injunction to withhold the CR files dated 1967 through 2011. Plaintiff argued that "an expired injunction has no legal effect in the present" and that requiring plaintiff to start over with a new request after years of litigation would be futile and inconsistent with FOIA.

¶ 23 CPD responded that the CR files previously covered by the injunction were exempt because they contained information specifically prohibited from disclosure by state law. 5 ILCS 140/7(1)(a) (West 2018). CPD argued that a lawful court order takes precedence over FOIA's disclosure requirements, so when an injunction bars the release of records, a "requester must first have the court that issued the injunction modify or vacate its order barring disclosure." In re Appointment of Special Prosecutor , 2019 IL 122949, ¶¶ 66-67, 432 Ill.Dec. 638, 129 N.E.3d 1181. CPD concluded that withholding the CR files dated 1967 to 2011 was not improper because the injunction barred their release at the time of plaintiff's request.

¶ 24 During this time, CPD did not produce any CR files dated 2011 to 2015. At an April 5, 2019, hearing on the parties’ pending motions, including a motion by plaintiff to compel production of...