Hosey v. City of Joliet

2019 IL App (3d) 180118

124 N.E.3d 1075

429 Ill.Dec. 565

Joseph HOSEY, Plaintiff-Appellant,

v.The CITY OF JOLIET, Defendant-Appellee.

Appeal No. 3-18-0118

Appellate Court of Illinois, Third District.

Opinion filed March 6, 2019

John V. Schrock, of Plainfield, for appellant.

James W. Glasgow, State’s Attorney, of Joliet (Marie Quinlivan Czech, Assistant State’s Attorney, of counsel), for appellee.

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

¶ 1 Plaintiff, Joseph Hosey, submitted four Freedom of Information Act (FOIA) ( 5 ILCS 140/1 et seq. (West 2016) ) requests to obtain videotaped police interviews of several individuals; defendant, City of Joliet (City), denied the requests. The Illinois Attorney General was asked to review the denials and determined that plaintiff was entitled to the videotapes. When the City still failed to process his requests, plaintiff filed a complaint for injunctive relief in the circuit court. Thereafter, both parties filed motions for summary judgment. The trial court granted summary judgment in favor of Joliet and against Hosey, finding that (1) section 103-2.1(g) of the Code of Criminal Procedure of 1963 (Criminal Code) ( 725 ILCS 5/103-2.1(g) (West 2016) ) prohibits disclosure by the City in this case and (2) the City failed to establish its defenses under FOIA that (a) the disclosure constituted an invasion of personal privacy and (b) the disclosure was unduly burdensome. Plaintiff appealed. We affirm.

¶ 2 FACTS

¶ 3 On January 4, 2016, plaintiff Hosey, a reporter for the Joliet Patch, submitted four FOIA requests to obtain the 2013 videotaped police interviews of murder suspects Alisa Massaro, Adam Landerman, Bethany McKee, and Joshua Miner. Since the requests were made, this court has filed decisions in People v. Miner , 2017 IL App (3d) 140897-U, 2017 WL 4417929, People v. McKee , 2017 IL App (3d) 140881, 414 Ill.Dec. 307, 80 N.E.3d 40, and People v. Landerman , 2018 IL App (3d) 150684, 431 Ill.Dec. 276, 127 N.E.3d 809. Defendant City denied Hosey's request pursuant to section 7(1)(c), (d)(i), and (d)(iv) of FOIA ( 5 ILCS 140/7(1)(c), (d)(i), (d)(iv) (West 2016) ), claiming unwarranted invasion of personal privacy, interference with actual or pending law enforcement proceedings, and disclosure of confidential source or information, respectively.

¶ 4 Hosey sought review by the Illinois Attorney General of the denials. That office determined that Hosey was entitled to the videotapes listed in the FOIA request because the City, in violation of section 9.5(c) of the FOIA (id. § 9.5(c) ), failed to comply with the Attorney General's request for a copy of the recordings and a written explanation for asserting the exemptions in denying Hosey's FOIA request. The City never provided Hosey with the videotaped police interviews.

¶ 5 Subsequently, Hosey filed a complaint for injunctive relief, attorney fees, and a civil penalty for the denial of his FOIA request. The City filed an answer and affirmative defenses, arguing that (1) responding to the request would be unduly burdensome to the City and outweighs public interest in the records and (2) the disclosure would be an "unwarranted invasion of personal privacy." Thereafter, the parties filed cross motions for summary judgment. The City argued that Hosey's claims should be dismissed based on the two affirmative defenses it had raised in its answer and also asserted for the first time that it was exempted under section 7(1)(a) of the FOIA (id. § 7(1)(a) ) from disclosing the videotapes because their disclosure was prohibited by section 103-2.1(g) of the Criminal Code ( 725 ILCS 5/103-2.1(g) (West 2016) ). In Hosey's motion for summary judgment, he alleged that (1) the City could not prove by clear and convincing evidence that his request should be denied in accordance with the FOIA, (2) his request does not constitute an invasion of personal privacy, and (3) the production of the videotapes would not be unduly burdensome because the videotapes were previously produced during the suspects' trial and the videotapes do not require "extensive searching or reproduction."

¶ 6 The trial court granted summary judgment in favor of the City and against Hosey, determining that (1) the City failed to show how disclosing the videotapes constituted an invasion of personal privacy; (2) the City failed to establish that disclosing the videotapes would be an undue burden; and (3) although there are contextual and policy arguments that support Hosey's rationale for disclosure, the plain language of section 103-2.1(g) of the Criminal Code indicates that the word "accused" is not situational and that the videotapes are exempt from public inspection because the defendants depicted in the videotapes were "accused" at the time of the interrogation. Hosey appealed.

¶ 7 ANALYSIS

¶ 8 On appeal, Hosey challenges the trial court's grant of the City's summary judgment motion on the basis that the requested videotapes were exempt under the Criminal Code from inspection and production. Summary judgment should be granted if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Morris v. Margulis , 197 Ill. 2d 28, 35, 257 Ill.Dec. 656, 754 N.E.2d 314 (2001). Summary judgment can aid in the expeditious disposition of a lawsuit, but it is a drastic measure and should be allowed only when the right of the moving party is clear and free from doubt. Id. If the plaintiff fails to establish any element of his claim, summary judgment is appropriate. Id. The standard of review for a motion for summary judgment is de novo . Id. ¶ 9 Under the FOIA, public records are presumed to be open and accessible. Southern Illinoisan v. Illinois Department of Public Health , 218 Ill. 2d 390, 415, 300 Ill.Dec. 329, 844 N.E.2d 1 (2006). "Based upon the legislature's clear expression of public policy and intent set forth in section 1 of the FOIA that the purpose of that Act is to provide the public with easy access to government information, * * * the FOIA is to be accorded liberal construction to achieve this goal." (Internal quotation marks omitted.) Id. at 416, 300 Ill.Dec. 329, 844 N.E.2d 1. "[T]he exceptions to disclosure set forth in the FOIA are to be read narrowly so as not to defeat the FOIA's intended purpose." Id. "[W]hen a public body receives a proper request for information, it must comply with that request unless one of the narrow statutory exemptions set forth in section 7 of the [FOIA ( 5 ILCS 140/7 (West 1998) ) ] applies." (Internal quotation marks omitted.) Id. at 417, 300 Ill.Dec. 329, 844 N.E.2d 1. If the denial is challenged in court, the public body has the burden of proving that the records in question fall within the exemption it has claimed. Lieber v. Board of Trustees of Southern Illinois University , 176 Ill. 2d 401, 408, 223 Ill.Dec. 641, 680 N.E.2d 374 (1997). This court reviews de novo whether the denial is proper under the FOIA. Chicago Tribune Co. v. Department of Financial & Professional Regulation , 2014 IL App (4th) 130427, ¶¶ 25-26, 380 Ill.Dec. 80, 8 N.E.3d 11.

¶ 10 First, Hosey argues that section 103-2.1(g) does not apply in this case because the word "accused" within section 103-2.1(g) is defined as "one charged with an offense" and the defendants were no longer "accused" when the FOIA request was made. Hosey claims that this interpretation of section 103-2.1(g) is supported by the language in section 103-2.1(c) of the Criminal Code ( 725 ILCS 5/103-2.1(c) (West 2016) ) which states, "Every electronic recording made under this Section must be preserved until such time as the defendant's conviction for any offense relating to the statement is final and all direct and habeas corpus appeals are exhausted, or the prosecution of such offenses is barred by law." Hosey claims that if this court were to accept the City's interpretation of section 103-2.1(g), it would cause an absurd and unjust result because all recordings of custodial interrogations would be exempt from public inspection. Citing Lieber , 176 Ill. 2d at 408, 223 Ill.Dec. 641, 680 N.E.2d 374, Hosey asserts that the City was required to give a written notice specifying the basis for the denial and he concludes that the City has forfeited this issue because it did not include the specific exemption on which it now relies in the denial letter.

¶ 11 The City responds that, under Chicago Tribune Co. , 2014 IL App (4th) 130427, ¶ 26, 380 Ill.Dec. 80, 8 N.E.3d 11, a public body does not waive exemptions that are not claimed in the initial denial letter. Furthermore, the City claims that the purpose of the Criminal Code to protect the rights of the accused does not end once the defendant is convicted. Therefore, the City asserts that because the videotapes were made during the custodial interrogations of persons who were criminally accused at the time of their making, the plain language of section 103-2.1(g) exempts their disclosure. The City alleges that if this court adopts Hosey's interpretation, it would be reading an exception into the statute that the legislature did not express. Also, the City alleges that Hosey's argument that the defendants are no longer "accused" fails because one of the defendants, Landerman, still had a case pending before this court that might have been remanded for a new trial.

¶ 12 As a preliminary matter, we address Hosey's waiver argument. In Chicago Tribune Co. , the Fourth District held that the defendant did not waive its claim that the trial court erred in granting summary judgment when the defendant failed to assert all of its grounds in the initial FOIA denial letter. Id. The court in that case relied on the ruling in Kopchar v. City of Chicago , 395 Ill. App. 3d 762, 770, 335 Ill.Dec. 555, 919 N.E.2d 76 (2009), in which the First District held that the defendant's reliance on additional exemptions in its summary judgment motion that were not referenced in the FOIA denial letter were not...